Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Among the facts charged in the instant case, each of the facts charged of violation of the Public Official Election Act, defamation against Nonindicted 4, and accusation shall be acquitted, respectively.

A. Defendant

(1) Violation of each Public Official Election Act, defamation against each of the non-indicted 4, and a false accusation

The Defendant, on June 2, 2010, issued a false statement with Nonindicted 4, the counterpart candidate at the time of the local election campaign, or made a false statement with Nonindicted 4, thereby impairing the reputation of Nonindicted 4, but the lower court found him guilty of all the charges on this part only by the testimony of the witness without credibility. In so doing, the lower court erred by misapprehending the facts contrary to the rules of evidence, and the Defendant’s statement that ○○○ Group’s liabilities are KRW 30 billion or KRW 30 billion, even if the Defendant’s statement that ○○○ Group’s liabilities are the publication of false facts under the Public Official Election Act, cannot be deemed to have undermined the reputation of Nonindicted 4, the incumbent head of Gun in light of the overall budget size of the ○○○○ Group. Moreover, the lower court erred by misapprehending the legal principles as to defamation and non-indicted 4 among the charges, thereby adversely affecting the conclusion of the judgment.

(2) Defamation of the members of the △△ branch office of the Changwon District Prosecutors' Office or △ branch office

The facts charged in this part of the facts charged are as follows: (a) if the other party who made a statement of facts is a reporter, there is no possibility of dissemination as long as the reporter did not publish and report it; and (b) it is difficult to view the sender’s phone number similar to the telephone number of the head of △△△ branch office to have been specified as the members of the △△ branch office or △ branch office; and (c) the Defendant’s act is merely a direct fact of impairing the reputation of the head of △△ branch office or the members of the △ branch office because the sending text messages to the reporter and the sending phone number that could mislead him as if the △ branch office was the △ branch office; and (d) as a result, the Defendant was willing to know that the reporter was under investigation into Nonindicted 2, etc., and as a result, did not recognize the fact that defamation against the head of △ branch office or the members of △ branch office, the lower court found him guilty as to this part of the facts charged. It erred by misapprehending the legal doctrine, thereby affecting the conclusion

(3) Unreasonable sentencing

Punishments (fine 2,500,000 and fine 5,000,000) imposed on the defendant by the court below are too unreasonable.

(b) Prosecutors;

Punishments (fines 2,500,000 and fines 5,000,000) imposed on the defendant by the court below are too unhued and unreasonable.

2. Determination

A. Violation of each Public Official Election Act and defamation against each of the non-indicted 4

(1) Summary of this part of the facts charged

피고인은 2010. 6. 2. 실시된 제5회 전국동시지방선거에서 공소외 1, 4와 함께 경남 ○○군 기초단체장후보로 출마한 사람으로서, 사실은 공소외 4가 ○○군수로 재직 중이던 2008.경 이후 ○○군에는 부채가 없고, ◇◇농공단지 사업이나 ◎◎공원 및 ◁◁공원 복원사업 등도 국비로 추진한 것일 뿐 부채를 얻어 추진한 사업이 아님에도 ○○군에 부채가 많아 재정이 어렵고, 공소외 4 후보가 군수로 재직하는 동안 추진한 사업 대부분이 빚을 얻어 추진한 것이라는 허위의 사실을 유포하여 공소외 4가 당선되지 못하게 하기로 마음먹었다.

(가) 피고인은 2010. 5. 27.경 경남 (이하 2 생략)에 있는 □□예식장 앞에서 열린 ○○장터에서, 공소외 5, 6, 7, 8, 9 등 다수의 청중이 있는 자리에서 ‘ 공소외 4 후보가 추진한 ☆☆리조트 사업, ◇◇농공단지 조성, ▷▷▷▷▷ 사업은 모두 어마어마한 빚을 내어 조성한 사업이다. ○○군에 300억 원의 빚이 있다. 군수의 자격이 있느냐’는 취지로 말하여 마치 공소외 4가 군수로 재직하는 동안 추진한 사업이 모두 빚을 얻어 추진한 것이고, ○○군에 부채가 많아 재정이 어려운 것처럼 연설함으로써 ○○군 기초단체장 후보자인 공소외 4에게 불리하도록 공소외 4에 관하여 허위의 사실을 공표함과 동시에 공연히 허위의 사실을 적시함으로써 공소외 4의 명예를 훼손하였다.

(B) On May 29, 2010, the Defendant: (a) around 2010, around 2010, at an open place in front of the △△△△○○-gun, ○○○○○-gun, which was located in Docheon-ri, in a number of audience, including Nonindicted 10, 11, 5, and 7, in a space where Nonindicted 4 had a lot of audiences; and (b) “Inasmuch as Nonindicted 4 had led the military situation so far, Nonindicted 30 billion won was caused by the ○-gun, the ○○-gun would have been seated. As the Defendant was in charge of the budget at the National Police Agency for 15 years, the Defendant could live in the ○-gun upon the election of the head of the Gun,” stating that Nonindicted 4 had a large amount of debt to the ○○-gun during his term of office as the head of the Gun, thereby publicly announcing the false facts about Nonindicted 4, a candidate for the basic ○○-gun, thereby publicly announcinging the false facts.

(다) 피고인은 2010. 5. 하순경 경남 ○○군 ○○읍에 있는 동문네거리에서, 공소외 12 등 다수의 청중이 있는 자리에서 ‘ 공소외 4 후보가 ○○군민을 속이고 밀양에서 공해업체로 쫓아낸 ▷▷▷▷▷를 ○○군에 유치하여 피해를 주고 있고, ▷▷▷▷▷ 세일즈맨인가? 왜 ▷▷▷▷▷ 유리섬유관을 팔아주고 있는가. 군수 재임시 ○○군에 빚을 많이 져서 앞으로 군수를 한 번 더하면 군 재정이 더 어려워진다’는 취지로 말하여 마치 공소외 4가 군수로 재직하는 동안 ○○군에 부채가 많아 재정이 어려운 것처럼 연설함으로써 ○○군 기초단체장 후보자인 공소외 4에게 불리하도록 공소외 4에 관하여 허위의 사실을 공표함과 동시에 공연히 허위의 사실을 적시함으로써 공소외 4의 명예를 훼손하였다.

(라) 피고인은 2010. 5. 31.경 경남 ○○군 ◇◇면 석천리에 있는 재래시장 앞에서 열린 ◇◇장터에서, 공소외 13, 10, 14, 15, 11, 5, 7 등 다수의 청중이 있는 자리에서 ‘ 공소외 4 후보가 군정을 잘한 것 같지만 ◎◎공원 및 ◁◁공원 복원사업을 하면서 엄청난 빚을 얻어다가 하였고, 지금 ○○군에 300억 원이라는 빚이 있다. 기업만 유치하면 잘하는 것이냐’는 취지로 말하여 마치 공소외 4가 군수로 재직하는 동안 ○○군에 부채가 많은 것처럼 연설함으로써 ○○군 기초단체장 후보자인 공소외 4에게 불리하도록 공소외 4에 관하여 허위의 사실을 공표함과 동시에 공연히 허위의 사실을 적시함으로써 공소외 4의 명예를 훼손하였다.

(2) The judgment of the court below

The lower court did not believe the Defendant’s statement that there was a speech at the time and place indicated in this part of the facts charged, but did not make a speech to the effect that Nonindicted 4, at the time, obtained the occurrence of a project that was promoted while in office as ○○○○○○○○○○○○○, or that ○○○○○○ would have raised the damage of KRW 30 billion, and found the Defendant guilty of all the facts charged on this part, on the ground that there was credibility in the statement of some witnesses corresponding to the facts charged.

(3) Judgment of the court below

(A) The following circumstances revealed by the evidence duly adopted and examined by the lower court, namely, the Defendant appears to have focused on promoting the budget experts because he worked for a long time in the area in charge of finance and budget of the National Police Agency during the election campaign period. For this purpose, the Defendant appears to have necessary to refer to the problems of the projects promoted by Nonindicted 4 or the financial issues of ○○○ Military. ② Nonindicted 16, on May 29, 2010, who had been in charge of Nonindicted 4’s joint campaign records, attempted to take the Defendant’s speech at the place of the election campaign, and there was a fluor between the Defendant and Nonindicted 17, who had attempted to take the Defendant’s speech at the place of the election campaign, and the financial problems of ○○○○○○○○○○ military forces were not the issues of the projects promoted by Nonindicted 4 during the election campaign period or the financial issues of 00 billion won, and the Defendant’s joint election campaign at the time of Nonindicted 4’s election campaign speech and the charge that 18000-gun was directly committed.

(B) However, in a criminal trial, the burden of proving the facts constituting the crime prosecuted is to be borne by the public prosecutor, and the conviction of guilt is to be based on the evidence with probative value that leads a judge to feel true enough that there is no reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it shall be judged in the interest of the defendant (see Supreme Court Decision 2006Do735, Apr. 27, 2006, etc.).

(C) In light of the aforementioned legal principles, Nonindicted Party 4’s statement that Nonindicted Party 4 and Nonindicted Party 4 did not know of the fact that Nonindicted Party 5 and Nonindicted Party 4 were likely to have been engaged in the election campaign for the following reasons: (a) Nonindicted Party 4 and Nonindicted Party 4 did not know of the fact that Nonindicted Party 4 were likely to have been engaged in the election campaign at the time of the election campaign; and (b) Nonindicted Party 4 and Nonindicted Party 4’s statement that it was difficult for the Defendant to find that Nonindicted Party 5 and Nonindicted Party 4 had been engaged in the election campaign at the time of the election campaign; and (c) Nonindicted Party 4 and Nonindicted Party 4’s statement that it was difficult for the Defendant to find that there was a lack of objective evidence that Nonindicted Party 4 and Nonindicted Party 4 were the campaign speechmaker at the time of the election campaign speech or interview; and (d) Nonindicted Party 5 and Nonindicted Party 4’s statement that it was difficult for the Defendant to take measures to monitor the election at the time of the election campaign commission.

(4) Sub-determination

Therefore, the judgment of the court below as to this part of the facts charged is erroneous by misunderstanding the facts against the rules of evidence and thereby affecting the conclusion of the judgment.

B. Ex officio determination

Before determining the grounds for appeal by the Defendant and the prosecutor, prior to the judgment on the grounds for appeal by the Defendant and the prosecutor, the public prosecutor examined the victims of defamation against the head of △△ branch office of the original district public prosecutor’s office or the members of △△ branch office of the original district public prosecutor’s office among the facts charged in the instant case, and applied for an amendment to the amendment of the indictment with regard to changing the victims to the members of the head of △△ branch office of the original district public prosecutor’s office or the head of △△ branch office of the △ branch office of the original district public prosecutor’s office. The subject of the judgment below as to the relevant part of the facts charged in the instant case that the court below found the Defendant guilty was unable to maintain.

However, notwithstanding the above reasons for ex officio destruction, the argument of misunderstanding of facts or misapprehension of legal principles as to the point of accusation among the facts charged in the instant case and defamation against the members of the head of the Changwon District Prosecutors' Office or △△ branch office is still subject to a trial at the trial at the trial at the trial at the

(c)a false point;

The summary of this part of the facts charged is as follows: (a) at the Changwon District Prosecutors' Office located in Dongnam (hereinafter referred to as the "3 omitted) around November 11, 2010, the defendant tried to prepare a false complaint that Nonindicted 4 did not know himself; and (b) at the △△△△△△△△△△△△△△△ after Nonindicted 4 filed a complaint with him; and (c) the defendant alleged that as to Nonindicted 4, who is the other party candidate at the time of the five-time nationwide simultaneous local election, there was a dispute over KRW 30 billion to ○○○○○○, and thus, he made a speech to the effect that he would have caused the damage to ○○○○,” but at that time, the defendant made a speech to the effect that he would have caused the above ○○, ○○, using his pay vehicle, and that it is hard to find that there was any violation of the rules of evidence that the defendant violated the rules of evidence against the above △△△△△△△△△△△, thus it is also inconsistent with the charges of 14.

(d) Defamation of the members of △△ branch office of the Changwon District Prosecutors' Office or △ branch office;

(1) Summary of this part of the facts charged and the judgment of the court below

이 부분 공소사실의 요지는, “피고인은 제5회 전국동시지방선거에서 ○○군수로 당선된 공소외 1 후보의 운전기사였던 공소외 2가 공직선거법위반죄로 구속되었다는 소문을 듣게 된 것을 기화로, 사실은 공소외 2가 공소외 1의 보좌관이 아니고, 창원지방검찰청 △△지청장 또는 △△지청 구성원이 기자들에게 문자를 보내는 방법으로 공소외 2에 대한 수사상황이나 피의사실을 공표한 사실이 전혀 없음에도, 공소외 1을 비방하는 내용의 문자를 △△지청에서 발신하는 것처럼 가장하여 보내기로 마음먹고, 2010. 11. 21. 15:18경 경남 (이하 1 생략)에 있는 피고인의 주거지에서, 컴퓨터를 이용하여 공소외 38 주식회사에서 운영하는 문자메시지 대량발송이 가능한 통합메시지서비스인 크로샷닷컴사이트( 인터넷 주소 생략)를 통해 경남일보 기자인 공소외 3 등 8명의 기자들에게 발신번호가 △△지청(지청장실 : (전화번호 1 생략))인 것처럼 허위의 발신번호를 게재하여 마치 △△지청장 또는 △△지청 구성원이 공소외 2에 대한 수사상황과 피의사실을 미리 알려주는 것처럼 '발신번호 : (전화번호 2 생략)/11. 20. △△지청, ○○군수 보좌관 공소외 2 멸치 500포 살포혐의구속, 이군수 집중 조사 중’이라는 허위 내용의 문자를 발송함으로써 공연히 허위의 사실을 적시하여 피해자인 창원지방검찰청 △△지청장 또는 △△지청 구성원의 명예를 훼손하였다”는 것인바, 원심은 그 거시 증거들을 종합하여 이 부분 공소사실을 유죄로 인정하였다.

(2) Judgment of the court below

(A) Whether performance is performed or not

The term “public performance”, which is the constituent element of the crime of defamation, refers to a state in which many and unspecified persons can be recognized. The following circumstances recognized by the record, namely, the occupation of a reporter, which is generally recognized by the record, should be deemed to have high possibility of transmitting the text message if he listens to any fact. In fact, Nonindicted 3 reporters of the Gyeongnamnamnam-do, who received text message from the Defendant, displayed the text message to his natives, confirmed whether he received the same text message to his natives, and confirmed the fact that he received the same text message from his seniors. In light of the fact that Nonindicted 32 reporters of the west Broadcasting confirmed the fact to the news reporters, and Nonindicted 33 reporters of the international newspaper sent a text message to the head of the public relations office of ○○○ Military Office on the same day and asked him about the facts. Although the Defendant sent the text message individually to the reporters, the Defendant did not meet the requirements for public performance even if he did not report the content of the text message.

(B) Whether the victim is specific

In order to establish tort by defamation, the victim must be specified, but the victim's name is not necessarily required to be specified. Even if his name is not indicated, if it is possible to find out who is the victim's name when considering the contents of the expression in light of the surrounding circumstances, it can be seen that the victim was specified (see Supreme Court Decision 2000Da68306, May 10, 2002, etc.). The so-called group defamation by the so-called group sign is exceptionally considered as being referenced to the individual members, or if it is deemed that the individual members in the group are referred to as the individual members in light of the surrounding circumstances at the time, etc., the individual members in the group should be specified as victims (see Supreme Court Decision 2002Da6358, Sept. 2, 2003, etc.). In other words, in light of the records, the defendant described the victim's phone number similar to the head of △△△△ branch's phone number and the other party members in the △△△△ branch's office's office's position.

(C) Whether the facts are alleged

A statement of fact, which is the constituent element of the crime of defamation, refers to pointed out and expressing facts of a nature that may undermine the social evaluation of the human value as a human being. In other words, the prosecution, as a matter of principle, shall establish the rules of investigation report and prohibit the distribution of materials on investigation or report prior to prosecution, and carries out the press report only in extremely exceptional cases, such as a serious error by the media, the spread of criminal damage, imminent danger to public safety, and the cooperation of the people for arresting criminals, etc. At present, the investigation agency only discloses materials that go beyond the past practice that was at issue of human rights violations against the suspect, etc., and the fact that the investigation situation of Nonindicted 2 and the fact that the fact that the defendant was accused cannot be published before prosecution because it does not correspond to the above exceptional reasons. In light of the following circumstances, the act of sending text messages by the head of △△△△ branch or the members of △△△ branch office, as if known in advance of the investigation situation and the fact that Nonindicted 2 had been subject to the investigation against the reporter or members of △△△△△△△ branch.

(D) Intentional intent

The record reveals the following circumstances, i.e., the defendant indicated eight reporters who are many people to send text messages to the head of △△ branch office or a member of △△ branch office, by posting text messages to the phone number similar to the telephone number of the head of △△ branch office, and then posting them to the phrases of △△ branch office, as seen earlier. The defendant himself stated that the contents of the text messages will be disseminated in the process of confirming facts by the reporters who received the text messages are sufficiently foreseeable, and that he himself was aware of the fact that the contents of the messages will be disseminated to a certain extent in the prosecutor's investigation, the defendant was aware of the fact that the investigation situation and the crime were not published in advance at the prosecutor's investigation, and later announced at the prosecutor's office, but at the time, the prosecutor's office did not summon or investigate Non-Indicted 1, and the defendant was also aware of the specific investigation situation or relationship with Non-Indicted 2 with Non-Indicted 1, and it can be seen that it was harmful to the head of △△ branch office.

(3) Sub-determination

Therefore, this part of the facts charged is fully convicted, and there is no error of law by misunderstanding legal principles, which affected the conclusion of the judgment, so the defendant's above assertion is without merit

E. Scope of reversal

Of the conviction portion of the lower judgment, the part of the lower judgment’s conviction should be reversed in its entirety, on the grounds that there exist grounds for ex officio destruction as seen earlier, and the Defendant’s appeal on the violation of each Public Official Election Act and defamation against each of the non-indicted 4 is with merit.

3. Conclusion

Therefore, under Article 364(2) and (6) of the Criminal Procedure Act, the guilty part of the judgment of the court below shall be reversed without examining the Defendant and the prosecutor’s assertion of unfair sentencing, and the following decision shall be rendered again through pleading.

Article 307(2) of the Criminal Act (Selection of Punishment of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

However, the Defendant is a primary offender with no penal power, and the fact that the reporters, who received text messages from the Defendant, did not actually gather such contents and do not report that they did not cause damage to them, is favorable to the Defendant.

In addition, the defendant's age, character and conduct, family environment, motive, means and result of the crime, and all the circumstances that are conditions for sentencing, such as the circumstances after the crime, shall be judged as ordered.

Judges Heung-heung (Presiding Judge)