(영문) 대구지방법원 2010.5.12.선고 2010노20 판결

The defendant shall be punished by a fine of KRW 1,000,000. If the defendant does not pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Reasons

1. Summary of grounds for appeal;

A. Error of mistake

Although the Defendant did not say that “IO may not know whether IO died of early death,” the lower court found the Defendant guilty of all the facts charged of this case, which erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. Legal principles

In light of the fact, the part that the Defendant stated that “n 00 shall not be suspended from working and dismissed due to being taken advantage of the company even if the taxi commission was so pushed,” is consistent with the purport of the above-mentioned statement at the general meeting of a trade union. As such, it is solely for the public interest to satisfy the union members’ right to know. Therefore, the Defendant cannot be punished pursuant to Article 310 of the Criminal Act. Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous by misapprehending the legal principles on

2. Determination

A. Ex officio determination

Before the judgment of the defendant's assertion of mistake of facts was made ex officio, the prosecutor applied for changes in the indictment of this case as stated in the following facts. Since the subject of the trial was changed by this court's permission, the judgment of the court below was no longer maintained.

However, notwithstanding the above reasons for ex officio reversal, the defendant's assertion of misapprehension of legal principles is still subject to the judgment of this court, and we will review below.

B. Judgment on misapprehension of legal principles

Article 310 of the Criminal Act provides that an act under Article 307(1) of the Criminal Act is true and solely for the public interest shall not be punished. Since defamation by a statement of false facts under Article 307(2) of the Criminal Act should have been established, and since the criminal should have recognized that such a fact is false, there is no room to apply Article 310 of the Criminal Act to an act falling under Article 307(2) of the Criminal Act. (see, e.g., Supreme Court Decision 99Do3213, Oct. 22, 1999) and Article 310 of the Criminal Act shall be deemed to aim to harmonize two legal interests conflicting with the protection of an individual’s reputation as personality right and the guarantee of the freedom of expression under Article 21 of the Constitution, in consideration of harmony and balance of legal interests, if there is no proof that the alleged fact is true and there is considerable reason to believe such act, it shall be deemed unlawful (see, e.g., Supreme Court Decision 2007Do42706).

On February 29, 2008, the court below issued a notice to the effect that the victim, who was a victim of a taxi driver belonging to a 00 taxi company (hereinafter referred to as "0 taxi") under the evidence duly investigated and adopted by the court below, would stop working on board without paying a smuggling taxi commission from a 00 taxi operator on February 2, 2008. ② At the time, the victim was the victim’s total 1,781,952 taxi commission in arrears at KRW 1,78,000,000,000,000 won as retirement pay, but the above amount was settled with the retirement pay as of February 29, 2008, and thereafter, there was no taxi commission again on March 15, 200 thereafter, and the defendant did not know that the victim did not have any preferential relation between the victim and the 00,000,000 won in light of the fact that the victim had been in arrears at the time, and there was no reason to recognize that the victim did not know the above facts.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of misunderstanding of facts, and it is again decided as follows.

Criminal facts and summary of evidence

Except for the deletion of the second 3-4 of the judgment of the court below, the second 00 of the 2-4th 00 kings of the judgment of the court below, "I do not know about whether she died?" is as stated in each corresponding column of the judgment of the court below, and therefore, all of them shall be cited in accordance with Article 369 of the

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 307(2) of the Criminal Act (Selection of Fine)

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

Grounds for sentencing

The defendant is judged to have no good faith, such as continuously denying the crime of this case, and the defendant does not agree with the victim until the court of the trial; the defendant has no previous conviction, but has several criminal records including one suspended sentence, and other circumstances shown in the records and arguments, such as the degree of damaged the honor of the victim, relationship with the defendant and the victim, the age of the defendant, character and conduct, environment, etc., shall be determined as the same as the order.