Defendant 1 and one other

Defendants

Park Jin-jin

Attorney Choi Sung-sung

Changwon District Court Decision 2001No2707 Delivered on July 18, 2003

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for eight months and by imprisonment for six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged in the instant case, defamation is acquitted.

1. Summary of the Defendants’ grounds for appeal

As a matter of the construction cost, the Defendants asserted only the victims and their comments, and did not arrest, threaten, or assault or injure the victims, or damage them. Accordingly, they did not mislead them by making false facts, and Defendant 2 did not harm the honor of the victims, and the lower court convicted the victims of all the charges, in so determining, the lower court erred by misapprehending the facts.

2. Determination

(a) Violation of the Punishment of Violences, etc. Act and the point of non-prosecution;

In full view of the evidence duly admitted and investigated by the court below, it can be sufficiently recognized that the defendants conspired to arrest, threaten the victims, assault or injure the victims, or damage to the victims as stated in its reasoning, and therefore, it can be recognized that the defendants made a false fact. Therefore, this part of the defendants' assertion is groundless.

(b) Defamation (Defendant 2)

(1) Summary of the facts charged

Defendant 2’s reputation by openly pointing out false facts in the inspection of the victim’s management located in Mapo-dong, 08:10 on August 10, 2000, when Defendant 2 had no fact that the victim had sexual intercourse with Nonindicted Party 1, Defendant 2, despite of the fact that the victim had sexual intercourse with Nonindicted Party 1, is prejudicial to the reputation of the female by openly pointing out false facts.

(2) Defendant 2’s assertion

As consistent from this investigation agency to this court, the above Defendant consistently denied the facts charged by the Defendant that “Non-Indicted 2 her own and Non-Indicted 1 she are drinking with their own her own she and Non-Indicted 1,” and that the Defendant did not have made such remarks.

(3) Determination

Therefore, among the statements made by Nonindicted 2 and Nonindicted 1, as they seem to correspond to the above facts charged, the statement to the effect that “Defendant 2 directly made the above remarks to the victim at the place where he was a new victim” cannot be believed in light of the following facts. According to the records of this case, Defendant 2 made the statement to the same effect as above by Defendant 2, and there is no person other than the victim from among the persons who were at the site of the above contents. Rather, it is recognized that the above Defendant 2 heard this speech to the effect that the above victim would make such remarks to Nonindicted 2, and again resisted the above Defendant. As such, it is insufficient to recognize that the above Defendant’s statement was a performance in which many unspecified or many unspecified persons can recognize it, i.e., performance, and there is no other evidence to acknowledge it.

Nevertheless, the court below erred by misunderstanding the facts by finding Defendant 2 guilty of this part of the facts charged, and thus, the judgment of the court below which sentenced to one punishment on the ground that this part of the facts charged against Defendant 2 and the remaining facts charged in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, cannot be reversed

C. Ex officio judgment (Defendant 1)

Upon examining ex officio the motive and background leading up to the instant crime, the degree of participation by Defendant 1, the age, character and conduct, intelligence and environment of Defendant 2, and the punishment imposed on Defendant 2, which are the punishment imposed on Defendant 2, and other various circumstances, which are the conditions for sentencing indicated in the record, the lower court’s sentencing against Defendant is too unreasonable, and thus, the lower court’s judgment cannot be reversed in this respect.

3. Conclusion

Therefore, pursuant to Article 364(6) of the Criminal Procedure Act, with respect to Defendant 2, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the following judgment is rendered again after pleading.

The facts constituting an offense against the Defendants recognized by this court and the summary of the evidence thereof shall be cited in accordance with Article 369 of the Criminal Procedure Act, except for deletion of paragraph (3) of the facts constituting an offense in the judgment of the court below and alteration of paragraph (4) to paragraph (3) of the same Article.

1. Relevant legal principles concerning facts constituting an offense (defendants);

Articles 2(2) and (1) of the Punishment of Violences, etc. Act, 276(1), 260(1), 366, 283(1), 257(1), 156 and 30 of the Criminal Act

1. Standing concurrence (defendants);

Articles 40 and 50 of the Criminal Code

1. Selection of a sentence;

Each Imprisonment Selection

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Suspension of execution (Defendant 1);

Article 62(1) of the Criminal Act (Taking into account these circumstances in determining the reasons for reversal ex officio)

As to the facts charged against Defendant 2’s defamation, as seen in the judgment on the grounds of appeal, the lower court acquitted Defendant 2 in accordance with the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of such crime.

Judges Lee Jae-chul (Presiding Judge)