(영문) 울산지방법원 2020.9.23.선고 2020고정548 판결

Defendant shall be punished by a fine of KRW 500,000. Where the Defendant does not pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting the amount of KRW 100,000 into one day.

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

Reasons

Criminal facts

The Defendant, from March 2016 to May 2017, after receiving a freat treatment from the HP department operated by the victim deposit department (50 units) from around 2016 to around 2017, claimed that the above hospital did not comply with each other after the freat treatment, and demanded refund of medical expenses, but the victim demanded payment of 2 million won for unpaid medical expenses, thereby making the victim feel a malicious appraisal.

On November 22, 2019, from around January 14, 2020 to around January 14, 2020, the Defendant conducted one person’s demonstration by taking advantage of the soft and the sofet operation with the words “dypt operation” in the front entrance of the first floor of the building located in Ulsan-gu almost every day. The Defendant did not run food and drink and carried out one person’s demonstration.

As above, the Defendant interfered with the business of the victim’s hospital by deceptive means, and damaged the honor of the victim by publicly pointing out facts.

Summary of Evidence

1. Partial statement of the defendant;

1. The protocol of statement of the police with regard to the custody;

1. Reporting on investigation (verification of suspect's condition);

1. Data submitted by the complainant (X-rain photographs, medical records, CCTV images, etc.) and related photographs [ insofar as the Defendant alleged that the crime was not committed since the demonstration was conducted in a true fact, and as long as the defamation part caused by the statement of false facts was found not guilty, and the crime of defamation by the statement of false facts is acknowledged as a crime of defamation, it is difficult to view that the Defendant’s illegality of the above crime is excluded in light of the period and method of demonstration, the necessity and legitimacy of such demonstration, and the motive and background of the crime, etc. of the Defendant’s above crime, even if the Defendant’s assertion was decided to the effect that the illegality

Application of Statutes

1. Article applicable to criminal facts;

Articles 314(1) and 313 of the Criminal Act (a point of interference with business), Article 307(1) of the Criminal Act (a point of defamation by statement of fact)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of Fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act is that the defendant’s demonstration by the method of expressing facts in front of the hospital operated by the victim would impair the reputation of the victim and interfere with the business of the victim. However, there is no record of the same kind of crime, and the part of defamation by the statement of false facts recognized in the summary order is not guilty, and the defendant’s age, character and conduct, environment, circumstances of the crime, circumstances after the crime, etc. are considered comprehensively taking into account all the sentencing conditions specified in the argument of the case, and the summary order shall be partially reduced

The acquittal portion

1. Summary of the facts charged

The Defendant received from the H values department operated by the victim's deposit with the victim, and did not contain any paint, and even if it was covered by the box, it was possible to be resolved by adjustment, the Defendant spreaded false facts by means of one person's demonstration, such as the statement of facts constituting the crime, and damaged the honor of the victim.

2. Determination

A. Relevant legal principles

In determining whether the alleged facts are false in order to apply Article 307(2) of the Criminal Act, in a case where the material facts are consistent with the objective facts when examining the overall purport of the alleged facts, even if there exist any false expressions that differ from the truth or are somewhat exaggerated (see, e.g., Supreme Court Decision 2007Do1220, Oct. 9, 2008). Even if the alleged facts are objectively false, if the actor believed that they were true at the time of the act and there were reasonable grounds to believe that they were true, the crime of defamation cannot be established (see, e.g., Supreme Court Decision 2005Do1446, Aug. 23, 2007).

B. Determination

According to the evidence duly adopted and examined by this court, it is recognized that in the dental surgery, the ging "cream" is called as "cream," and the gingle model is called as "cream". At the time of the demonstration described in the facts charged in this case, the defendant's cream was not omitted, and the defendant's cream was performed in the victim's dental clinic and paid the price of the cream and cream by dividing it.

However, in full view of the following circumstances acknowledged by the above evidence: (a) the victim's expression was omitted at the time, (b) the expression "cream" is likely to be deemed to mean at the same time, from an average general public point of view, with a view to the fact that the expression "cream" is directly added to the ging and writing, (c) the defendant appears to have simply expressed "clocking" as "clocking," and (d) the investigative agency also stated that "closion was omitted because it was omitted," the above expression of the defendant is different in detailed parts from the whole, and there is no evidence to acknowledge the fact that the evidence of this case alone is false, and there is no other evidence to acknowledge this otherwise.

3. Conclusion

Thus, since the facts charged as to defamation by the statement of false facts in this case constitute a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, since the facts charged as to defamation by the statement of facts such as the statement of facts in the judgment, are included in the facts charged, and as long as it is found guilty of the crime of defamation by the statement of facts and the crime of interference with business within the scope of the same facts