Residence

Reference domicile

According to the evidence duly admitted and examined by the court below, the defendant has sufficiently recognized the insult of the victim as stated in the facts charged.

2. Summary of the facts charged

On March 23, 2015: around 13: the Defendant was under investigation by the Criminal Team at the ○○ Police Station’s Criminal Team in charge of threatening the Victim B by a case and a separate case inside the office and under investigation from the criminal charge in charge of threatening the Victim B by a case and a separate case, and “this person shall send the victim to a mental hospital as a mentally ill patient.”

3. The judgment of the court below

The lower court acquitted the Defendant on the ground that “The Defendant’s speech may spread to an unspecified or many unspecified persons, i.e., the possibility of spreading the Defendant’s speech, barring any special circumstance,” on the ground that “The Defendant’s speech may spread to an unspecified or unspecified number of people,” in full view of the circumstances that the Defendant’s public official engaged in the investigation was only C, D, E, F, and the victim, a police officer, other than the ○○ Police Station investigation at the present site and the 2nd head of the Criminal Affairs Team, and the said police officer, who is a public official engaged in the investigation, is a public official in a duty-related relationship that may expect not to spread the Defendant’s

4. Judgment of the court below

A. The public performance, which is the constituent element of the crime of defamation, refers to the state in which an unspecified person or a large number of people can be recognized. Although a statement of facts about an individual person is likely to spread to an unspecified or unspecified person, if it satisfies the requirements of public performance, it shall be deemed to lack performance if it is unlikely to spread it otherwise, and the same applies to the public performance, which is the constituent element of the crime of insult (see, e.g., Supreme Court Decisions 83Do49, Apr. 10, 1984; 2008Do2090, Apr. 24, 2008). Meanwhile, in cases of recognizing the public performance of the crime of defamation or insult on the ground of radio wave possibility, it is necessary to have dolusent intent as a subjective element of the constituent element of the crime, and thus, it is necessary to consider the possibility of dissemination as well as to recognize the possibility of dissemination, and it shall be evaluated by the general public from the standpoint of 204 of the act.

B. According to the evidence duly adopted and examined by the court below, it is acknowledged that the defendant made a statement as to the facts charged to the victim in the investigation of the criminal team of the ○ Police Station and five police officers within the office of the defendant, but the above statement is inside the police station office at which the defendant made the above statement, and only five police officers working within the police station at the time. The remaining five police officers except the above victim are people in occupational relationship who expect not to transmit the statement without permission, and if there are five persons except the defendant and the victim, it is difficult to see that the number is the majority in light of the nature of the case. Thus, it is difficult to see that the defendant made a statement as to the facts charged even if he made a statement as stated in the facts charged, and there is no other evidence to acknowledge it.

C. In addition, the defendant's act of going to a police station was aimed at being investigated as a suspect against the suspicion that the defendant threatened the victim with intimidation. Such remarks were conducted to appeal the victim's complaint to an investigative agency rather than to undermine the social evaluation of the victim's personal value, and thus, have a self-defense tendency. As seen earlier, it is difficult to deem that the defendant recognized the possibility of spreading the victim's statement, and that the defendant was only five police officers who were working or could have heard the defendant's statement as seen earlier, in light of the fact that the defendant was only five police officers who were working within the victim and the police station.

D. Therefore, prosecutor's argument of mistake of facts is without merit.

5. Conclusion

Thus, the prosecutor's appeal is without merit and it is dismissed under Article 364 (4) of the Criminal Procedure Act.

Judges Kang Jong-chul

Judges Hak-chan