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1. The judgment below is reversed.
2. The defendant shall be punished by a fine of 500,000 won;
3. The above fine shall not be paid by the defendant.
Reasons
1. The summary of the grounds for appeal is recognized that the Defendant prepared the same writing as the facts charged and posted it in D (hereinafter “D”), but the posting of this article is admitted only to those who had an anti-competence against the victim. As such, the Defendant’s posting of the above notice is not deemed to have public performance, and its illegality is excluded as it does not go against the social rules in light of the circumstances of the case.
Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in misapprehension of legal principles.
On the other hand, the punishment (one million won of fine) sentenced by the court below is too unreasonable.
2. Determination
A. Formality refers to the state in which many and unspecified persons can be recognized (see Supreme Court Decision 91Do347, Jun. 25, 1991). Even in cases where there are certain restrictions on the qualifications of a large number of members, such acts are public performance (see Supreme Court Decision 83Do3292, Feb. 28, 1984). The following circumstances acknowledged by the evidence duly adopted and investigated by the court below are as follows: ① members were joined by approximately 220 members at the time of the instant crime; ② the number of members was extremely large; and the Defendant was not in a close relationship with the entire members; ② even if most of the members were in a situation in which they were in conflict with the victim, it is difficult to conclude that the above members could not be able to report and deliver to a third party an abstract judgment or light evaluation that could undermine the social evaluation of the victim; and the Defendant’s act of public performance or publicity was not in violation of the Criminal Act’s social norms and the possibility of public performance or dissemination thereof.