[폭력행위등처벌에관한법률위반(인정된 죄명 : 상해)·상해·공갈·명예훼손][공2002.1.15.(146),234]
Whether the facts charged of defamation can be punished as a crime of defamation in a case where false facts are false without changing the indictment (negative)
With respect to the facts charged by a prosecutor as a factual defamation under Article 307 (1) of the Criminal Act, if the court recognizes the offense of defamation based on false facts under Article 307 (2) of the Criminal Act, which is more severe punishment without changing the indictment, it would give disadvantage to the defendant's exercise of his/her right to defense
Article 307(1) and (2) of the Criminal Act; Article 298 of the Criminal Procedure Act
Defendant
Defendant
Changwon District Court Decision 2000No240 delivered on August 17, 2001
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.
1. The court below's finding the defendant guilty of all of the facts charged in this case as to the injury and attack and defamation against the police officers during June 1998 is proper, and there is no error in violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles, as alleged in the grounds of appeal. Therefore, this part of the grounds of appeal cannot be accepted.
2. Of the facts charged in the instant case, the lower court also found the Defendant guilty on July 1, 1998 that the part of the facts charged that the Defendant damaged the reputation of the victim by openly pointing out the fact at the beginning of July 1998, and recognized that the Defendant corrected this part of the facts charged by pointing out false facts, thereby impairing the reputation of the victim, and applied Article 307
However, it is not permissible for a prosecutor to recognize the crime of defamation without changing the indictment as to the facts charged for factual defamation under Article 307 (1) of the Criminal Act, which was charged by a public prosecutor without changing the indictment, to disadvantage the defendant's exercise of his right to defense and thus, it is not permissible. Therefore, the court below's decision on this part of the facts charged differently from the facts charged without changing the indictment, which affected the conclusion of the judgment by misapprehending the legal principles on the changes in the indictment, and the grounds for appeal pointing this out are with merit.
3. Therefore, the judgment of the court below which rendered a single sentence is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion, on the grounds that defamation in the first half of July, 1998 and other criminal facts constitute concurrent crimes under the former part of Article 37 of the Criminal Act.
Justices Zwon (Presiding Justice)