Defendant

Defendant

The current completion of a trial, the transfer of a trial;

Attorney Kim Hyun-hoon

Busan District Court Decision 2014Ma734 Decided September 10, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The appeal of this case is not a statement of fact, but a statement of opinion about the defendant's value judgment or evaluation, and it is a good intent to inform internal partners of problems about public and social issues and correct them, and it is difficult to recognize the defendant's intentional defamation as it cannot be seen as an attack against the victim with bad faith or gross reasonableness, and therefore, it is difficult to recognize the defendant's intentional defamation. Since the appeal of this case was sent for public interest, the court below found the defendant guilty of the facts charged of this case even if it is dismissed in accordance with Article 310 of the Criminal Act. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment with prison labor for four months, one year of probation, and 80 hours of community service) is too unreasonable.

2. Determination

A. Determination as to factual relevance

In order to establish defamation, specific facts that may infringe on a specific person’s social value or assessment should be publicly stated. Whether an expression constitutes defamation should be determined as an objective assessment in accordance with the ordinary social norms regarding such expression (see Supreme Court Decision 2008Do6728, Nov. 27, 2008, etc.).

Based on the above legal principles, when considering the contents of the appeal of this case, it can be known that there is a specific fact that is likely to infringe on the social value or evaluation of the victim due to the forced expulsion of the affected persons affected by Hansen's disease who were forced to be admitted to the △△△△△△△, and the petition for forced deportation was mobilized, and the service and the number of riot police officers were mobilized. The site of the △△△△△△ was illegally sold and the monthly rent was confirmed to have been received double, so the above argument by the defendant is without merit.

B. Determination as to the intention of defamation or the existence of a ground for excluding illegality

If an act that defames a person by openly pointing out facts is true and solely for the public interest, it cannot be punished pursuant to Article 310 of the Criminal Act. Here, the term "real fact" means a fact that is consistent with objective facts in light of the overall purport of its contents. Even if some of the material parts are different from truth or somewhat exaggerated expressions exist, the term "when it comes to the public interest" refers to the public interest, and the alleged fact objectively concerns the public interest, and the actor also states the fact subjectively for the public interest. It includes not only the public interest of the State, society, or other general public, but also the interest and interest of a specific social group or its entire members. Whether the alleged fact concerns the public interest includes not only the public interest but also the public interest. At the same time, considering the contents and nature of the relevant alleged fact, the scope of the other party to which the publication of the relevant fact was made, the method of expression itself, etc., and comparing and determining the degree of harm or damage to such expression with the intent of 100 or 200 motive of the offender, etc.

위 법리를 기초로 이 사건 기록을 자세하게 살펴보면, ① 피해자 재단법인 ○○△△△은 한센병 환자의 구호와 보호 등을 설립목적으로 하는 법인으로서 한센병 환자들을 보호, 요양하는 시설인 △△△을 운영하고 있는 사실, ② 피해자는 2010. 초경 △△△에 입원한 한센병 환자 공소외 2를 상대로 △△△에서의 퇴거 등을 구하는 소( 대구지방법원 서부지원 2010가단5452 )를 제기하였다가 공소외 2가 답변서를 제출하지 아니함으로써 2010. 4. 28. 무변론 승소 판결을 선고받았고, 2010. 5. 15. 위 판결이 확정된 사실, ③ 그러자 피해자는 위 판결 정본을 근거로 하여 공소외 2를 △△△에서 퇴거시켰고, 2006.경에는 피해자의 임원진과 갈등이 있었던 한센병 환자 공소외 3 등도 퇴원 조치한 바 있었는데 이는 법원의 판결에 기초한 것은 아니었던 것으로 보이는 사실, ④ 이후 공소외 1(대판:공소외인), 공소외 2 등이 △△△에서 퇴원 조치된 한센병 환자들의 재입소를 요구하는 집회를 개최하거나 △△△에 무단으로 들어가 퇴원 조치에 항의하자, 피해자 측이 경찰에 신고하여 경찰관들이 출동한 적이 있었고, 피해자도 자체적으로 경비용역계약을 체결하여 경호원들을 고용한 사실, ⑤ (방송국명 생략) 「(프로그램명 생략)」에서 2010. 10.경 △△△이 재단운영방식에 이의를 제기한 한센병 환자들을 쫓아내고, 중증 장애를 가진 한센병 환자를 방치하고 있으며, 지난 6년간 100억 원 가까운 재산이 증발했다는 의혹이 있다는 등의 내용을 보도한 것을 비롯하여 그 무렵 언론에서 이와 유사한 취지의 기사들을 보도하였고, 이미 2008. 10. 20.경 진행된 국정감사에서 △△△의 내부 비리문제가 거론되기도 한 사실, ⑥ △△△이 2013. 8.경 □□□□ 회관 부지를 매각할 당시 공개입찰 절차에 따르기는 하였으나 대구광역시가 단독응찰함으로 인하여 결국 대구광역시에 매각되었고, 매각 전인 2013. 7. 29. 개최된 ◇◇◇◇◇◇◇회 임원회에서 위 부지 매각 청원 건에 대하여 이를 허락하는 결의가 아닌 “서기가 사실 확인한 후 총회장의 허락을 받아 처리하기로 한다”라는 결의만 있었던 사실이 인정된다.

According to the above facts, the appeal of this case was prepared and sent under the name of Non-Indicted 1 (the Non-Indicted 1) with the consent of Non-Indicted 1 (the Non-Indicted 1) on the basis of the facts or suspicions that the defendant had already been known, and the detailed contents such as the monthly double receipt of rent do not confirm the truth, and there are different or somewhat exaggerated expressions. However, in light of the various facts as seen earlier, it is difficult to deem that the whole purport of the appeal is consistent with objective facts or that the defendant was aware that its contents were false (in fact, it is difficult to readily conclude that the prosecutor indicted the defendant as a crime of defamation by a false statement of false facts under Article 307(2) of the Criminal Act, but requested the court below to change the applicable provisions and charges to defamation by a statement of facts under Article 307(1) of the Criminal Act, and the court below approved the change of the contents of the appeal and charges to the indictment by the indictment).

In addition, if the facts acknowledged earlier are added to the fact that the Defendant did not open the instant appeal to the general public and only sent to the △△△ members, an election agency of executive officers of △△△, the instant appeal is intended to rehospitalize patients suffering from Hansen’s disease who were discharged, or to file a complaint against the internal corruption of △△△△, and it is reasonable to regard the public interest as related to at least to the interest and interest of the △△ members of △△△△, an election agency of executive officers of △△△△△△△, and the Defendant prepared and sent the instant appeal to the public interest, which is related to the public interest, as well as to the public interest, as the principal purpose of the Defendant’s sending the instant appeal is deemed to have been public interest. Therefore, the illegality of the Defendant’s appeal should be deemed to have been dismissed pursuant to

C. Sub-decision

Therefore, although the facts charged in this case constitute a case where there is no proof of crime, the court below found the defendant guilty. The court below erred by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment, and the defendant'

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

1. Summary of the facts charged

From around 207, the Defendant received orders from Nonindicted 4, etc. regarding ○○○△△△△△△ (hereinafter “△△△△△△”) regarding the victim foundation. Nonindicted 4, etc., who aided the Defendant, was punished for criminal punishment due to breach of trust in the course of selling the site of ○○△△△△△△△△△, and Nonindicted 2, etc., who was the original offender, filed a complaint with the △△△△△△△△△△△△△ in violation of the Social Welfare Services Act, and withdrawn the above complaint, and was the head of the ○○△△△△△△△△△△△△△△△△△, and thereafter, raised an objection to the △△△△

피고인은 공소외 1(대판:공소외인) 등이 공소외 2의 △△△ 복귀를 요구하며 △△△ 앞에서 시위하자, 공소외 1(대판:공소외인)의 명의로 △△△에 대해 비방하는 말을 담은 호소문을 작성하여 △△△ 이사 등의 선출기관인 대구 □□□□ 장로들에게 보내기로 마음먹고, 2013. 10. 1.경 대구 서구 (주소 1 생략)에 있는 피고인의 집에서 A4용지에 컴퓨터를 이용하여 공소외 1(대판:공소외인) 명의의 호소문이라는 제목으로 “○○△△△에는 한센인들에 대한 인권유린 및 불법부정은 계속되고 있습니다. 아무런 죄도 없이 강제추방 당해 노숙을 하는 한센인들이 △△△에 입소하여 줄 것을 호소하자 용역을 부르고 공권력을 동원하는 등 인권유린의 극치를 보여주고 있습니다.”, “4-5명의 힘없는 한센인들이 △△△에 입원시켜달라고 원장 면담을 요청하니 용역들과 전투경찰 수십 명을 동원하여 또다시 저희들을 강제추방합니다.”, “△△△은 그 부지(□□□□ 회관 부지)를 불법으로 또 팔아치웠습니다.”, “임대보증금은 보관하였다가 임대인이 나갈 경우 지급하여야 하는데 수억 원에 달하는 그 임대보증금이 없어졌습니다. 그리고 월 임대료도 2중으로 받아 왔던 것이 확인되기도 하였습니다.” 등의 문구를 기재하는 방법으로 문서를 작성한 후 같은 날 대구 서구 (주소 2 생략)에 있는 ▽▽▽우체국에서 ◎◎◎◎◎◎◎◎◎회 통합처 소속의 □□□□ 회원들 약 182명에게 우편을 이용하여 위 호소문을 발송하였다.

However, the facts are that the forced originals, such as Nonindicted Party 2, were lawfully removed according to the court ruling, and they were not forced to be forced without any crime. In addition, the part of the △△△ Council’s sale of the site that was conducted on March 2013, 201, by Nonindicted Party 1, etc. was invaded into the △△△△△△ without permission by re-hospitalize Nonindicted Party 2, etc., despite the detention of the employees, the police used violence, such as “if Nonindicted Party 2 is re-hospitalized, he would lead to the △△△△△△△△△△△△△△△,” “if he does not re-hospitalizes the Defendant, he would lead to the death of the △△△△△△△△△△△△△△△△,” and it was confirmed that the Defendant participated in the procedure of sale of the site under the name of the △△△△△△△△△△, etc., and that there was no change in the bid to sell the site after the sale.

Nevertheless, the Defendant believed that various suspicions surrounding △△△△ have been spreaded, and as mentioned above, the Defendant written an appeal stating that various illegal acts, such as forced deportations by persons affected by Hansen’s disease and sale of illegal sites, etc., in the name of Nonindicted Party 1 (Nonindicted Party 1) were true. The Defendant posted the appeal to approximately 182 members of △△△△△△△ to approximately 182, thereby impairing the honor of the victim by publicly alleging the fact.

2. Determination

The facts charged in this case constitute a case where there is no proof of crime as seen in Article 2-2(b) above, and thus, acquittal is rendered pursuant to the latter part of Article 325 of the

Judges' profit-making (Presiding Judge)