2015No2358 A. Defamation

(b) Fraud by using computers, etc.;

(c) Quasi-Fraud;

1. A. B. A.

Residence

Reference domicile

2. (c) B

Residence

Reference domicile

Both parties

Water intake (prosecutions) and leaptables (Trial)

Attorney ○○○ (for Defendant A)

○○○ (Defendant B’s national ship for Defendant B)

Suwon District Court Decision 2014Ma4135 Decided August 25, 2015

April 19, 2016

The judgment of the court below is reversed.

Defendant A shall be punished by imprisonment with prison labor for ten months and by imprisonment for six months.

1. Summary of the grounds for appeal;

A. Public prosecutor (an unreasonable sentencing decision)

The sentence of the court below (Defendant A: 2 years of suspended sentence in October; 2 years of suspended sentence in May; 3 years of suspended sentence in community service work; 160 hours in community service work) is too unhued and unreasonable.

B. Defendant A

1) misunderstanding of facts

In light of the fact that the Defendant did not have made a statement that impairs the honor of the victim C, and even if the Defendant made such a statement with the speaker, it cannot be deemed that there was an intentional damage to the reputation of the victim in light of the fact that he made efforts to compromise D and C.

2) misunderstanding of facts

Upon obtaining permission from the victim D, the Defendant transferred KRW 15.8 million to the Defendant’s account.

3) Unreasonable sentencing

The sentence of the court below is too unreasonable.

C. Defendant B (Unjustifiable Sentence)

The sentence of the court below is too unreasonable.

2. Determination

A. Judgment on Defendant A’s assertion of mistake of facts

1) A) The lower court witness E, and F state that the Defendant had made the same remarks as the written indictment. The Defendant’s assertion that there is no statement that there was no omission of the Defendant’s statement that defames the Victim C’s reputation. (See 146 pages, 153, 154, and 235 of the trial record)

B) The criminal intent as a subjective constituent element of the crime of defamation is sufficient to recognize the fact that the actor has caused damage to the reputation of the victim (see Supreme Court Decision 85Do588, May 28, 1985). The defendant's assertion that the defendant has made efforts to compromise D and C is groundless.

2) The following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① the defendant alleged that he transferred KRW 15.8 million to his own account with the consent of the victim D, but D stated that such consent was not granted (see the court below records No. 134), ② the defendant alleged that the transfer of credit was a form when he borrowed money from D, but (see the court records No. 78 pages), but it is difficult to understand that D, who received the certificate of loan, did not receive the certificate of loan when he lent money to G, one of his own children, did not receive the certificate of loan from the defendant (see the court records No. 85, No. 86 of the court below records), and ③ there were no circumstances supporting the fact that he borrowed money, such as the fact that he paid interest.

The defendant's assertion that the account transfer was made with the consent of the victim D is without merit.

B. Determination on the assertion of unreasonable sentencing by the Defendants and the prosecutor

1) As to Defendant A

A) It is recognized that the lower court deposited KRW 60,515,00 for the victim D at the lower court, and that the Defendant paid KRW 5,500,00 for the attorney’s fees on behalf of the said victim, and KRW 7,704,720 for the medical expenses indicated in attached Table 1, as well as KRW 7,704, and 720 for the victim, and that there was no criminal record of the same kind.

B) However, the Defendant did not deny the Defendant’s crime, and did not reflect the mistake; the amount of damage caused by the Defendant’s fraud by using the computer of this case reaches KRW 15.8 million; the victim did not agree with the victims; KRW 32,080,280 out of the amount of damage ( = 105,80,000 - 60,515,515,000 - 5,500 - 5,500,500 - 7,704,720 - 7,720) was not recovered from damage; the relationship between the victim and his wife is between the victim and the victim’s wife under the order of the Defendant, who is a Kaman of the victim’s early death, to protect the victim suffering from dementia; the circumstances of the Defendant’s crime and the circumstances of the crime of this case are deemed unreasonable after taking account of the following factors:

C) Therefore, the prosecutor’s assertion pointing this out is with merit, and the defendant’s assertion is without merit.

On the other hand, the defendant asserts that the defendant paid 30 million won to ○○ Law Firm on October 31, 2014, as the contingent remuneration for the case of personal protection of 2013-2 person district court of Jung-gu Government on February 31, 201, the defendant paid d on behalf of the victim.

살피건대 , 원심 및 당심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정들 즉 , ① 위 인신보호 사건에 대하여는 2013 . 5 . 3 . 인용결정이 내려 졌으나 , 피고인은 2014 . 10 . 31 . 법무법인 ○○에 3 , 000만 원을 송금하였던 점 , ② 법무 법인 ○○은 위 인신보호 사건의 착수금 명목으로 지급된 550만 원에 대하여는 피해자 D의 전화번호를 알 수 없었기 때문에 현금영수증을 발행하면서 전화번호를 ' 010 - 000 - 1234 ' 로 등록하였으나 , 위 3 , 000만 원에 대하여는 현금영수증을 발행하면서 전화번호를 피고인의 전화번호인 ' 010 - XXXX - XXXX ' 로 등록하였던 점 , ③ 피고인과 법무법인 ○○ 사이에 작성된 인신보호 사건의 ' 위임계약서 ' 에는 착수금이 ' 5 , 000 , 000 원 ( 부가가치세 별도 ) ' 이라고 명확하게 기재되어 있으나 , 성공보수에 대하여는 ' 추후 협 의한다 ' 고 기재되어 있을 뿐 구체적으로 정해져 있지 아니한 점 , ④ 피고인은 법무법인 ○○에 대법원 2012다19697호 사건 ( 원고 : H , 피고 : 피고인 ) 을 위임한 상태였는데 , 2014 . 4 . 10 . 원고의 상고를 기각하는 판결이 선고됨에 따라 법무법인 ○○에 성공보수 36 , 982 , 968원을 지급할 의무가 있었던 점에 비추어 볼 때 위 3 , 000만 원은 대법원 2012다19697호 사건의 성공보수 명목으로 지급되었다고 봄이 상당하다 .

Therefore, the defendant's assertion that ○○ Law Firm paid KRW 30 million on behalf of the victim D is not accepted.

B) The Defendant also asserted that he paid the amount equivalent to KRW 1,583,950 to the victim D as shown in attached Table 2. However, it is difficult to recognize that each of the above money was paid for the said victim solely on the materials submitted by the Defendant. Accordingly, the Defendant’s above assertion is not acceptable.

2) As to Defendant B

A) It is recognized that the Defendant made a confession and reflect on the instant crime, and that he is the first offender, etc., by committing the instant crime in the trial.

B) However, in full view of the following circumstances: (a) the amount of damage caused by the instant crime reaches KRW 50 million; (b) the victim did not agree with; (c) the damage recovery was not made; (d) the elderly suffering from dementia was the subject of the crime; and (e) the quality of the crime is not very good; and (e) other various circumstances, which are the sentencing conditions specified in the instant argument, such as the Defendant’s age, environment, and circumstances after the crime, are deemed unreasonable.

C) Therefore, the prosecutor's argument pointing this out is with merit, and the defendant's argument is without merit. 3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act on the grounds that the public prosecutor's appeal against the Defendants is well-grounded, and the following is decided after pleading ( insofar as the defendants' appeal is without merit, but the judgment of the court below is reversed by accepting the prosecutor's appeal, the appeal by the defendants shall not be dismissed

Criminal facts and summary of evidence

The summary of the facts constituting the crime and the evidence acknowledged by this court is used as the "victim B" among the facts constituting the crime against Defendant B, and the summary of the evidence is as follows: "A part of the Defendants' legal truth" and "A part of the original judgment" are the same as the description of each corresponding column of the judgment of the court below. Thus, it is accepted as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

A. Defendant A: Article 307(2) of the Criminal Act (a false accusation) and Article 347-2 (a) of the Criminal Act (a point of fraud by using computers, etc.) and each choice of imprisonment with prison labor

B. Defendant B: Article 348(1) of the Criminal Act and the choice of imprisonment

1. Aggravation for concurrent crimes;

Defendant A: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

Reasons for sentencing

1. Defendant A

[Scope of Recommendation Form]

General Fraud Type 2 (at least KRW 100, less than KRW 500,000)

[Special Mitigation]

Where considerable damage has been restored;

*The standards for handling multiple crimes: With respect to concurrent crimes under the former part of Article 37 of the Criminal Act between the crime of fraud by using computers, etc. whose sentencing criteria are set and the crime of defamation for which no sentencing criteria are set, the lowest sentence

The lower limit of the range of sentence on the sentencing criteria for crimes for which the standards are set shall apply.

【Determination of Sentence】

“2-B. Determination on the Defendants and the Prosecutor’s argument on unreasonable sentencing”

2. Defendant B

[Scope of Recommendation Form]

General Fraud Type 1 (less than KRW 100 million) Basic Area (from June to June 1)

【Special Convicted Persons】

None

【Determination of Sentence】

“2-B. Determination on the Defendants and the Prosecutor’s argument on unreasonable sentencing”

Judges Sung-ho et al.

Judges Kang Jong-chul

Judges Hak-chan

Attached Form 1.

A person shall be appointed.

A person shall be appointed.

Attached 2.