(영문) 서울중앙지방법원 2018.1.25. 선고 2017노573 판결

Article 310 of the Criminal Code does not contain false facts, and even if false facts are false, the defendant believed it to be true facts, and the contents of the Plogram using the loud speaker for the public interest. Therefore, illegality is excluded by the Criminal Code.

B. Unreasonable sentencing

The punishment of the lower court (one million won of a fine) is too unreasonable.

2. Determination

A. Ex officio determination

In the past two times of the trial, the prosecutor filed an application for changes in indictment with respect to changes in the summary of the facts charged as follows, and this court permitted both of them, thereby changing the subject of the trial. Therefore, the judgment of the court below became impossible to maintain it as it is.

However, even if there are the above reasons for ex officio reversal, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court.

B. Judgment of mistake of mistake

1) Summary of the facts charged 1

Since July 1985, the Defendant operated the Victim B Co., Ltd. (hereinafter referred to as "B") in Ulsan from around July 1985, and the transaction was interrupted due to the Defendant's failure to pay the goods.

From December 3, 2015 to January 14, 2016, the Defendant: (a) Do Building in Jung-gu, Seoul; and (b) Do-gu, Jung-gu, Seoul; (c) Do-gu, upon being sprinked on the remaining debt KRW 2 million from B on January 2015, the Defendant received documents to cancel the establishment of the right to collateral security; and (d) received only the principal documents to cancel the establishment of the right to collateral security; and (e) on October 23, 2015, the Defendant continued to refuse the receipt of the documents to provide B; (b) however, even though the Defendant refused the receipt of the documents to cancel the establishment of the right to collateral security, he/she puts a clicket stating that “the ek of the malicious enterprise, which does not want to be released, by openly pointing out false information by sound using a loudspeaker, thereby impairing the honor of B by openly pointing out false information.

2) The judgment of the court below

As a result of the previous case between the defendant and B, in light of the circumstances leading to this case, the dispute between the defendant and the B and the agency council, the contents and behavior of the diskettes, etc., the court below judged that the contents of the diskettes are true, that there was a justifiable reason to believe it as true, or that it is difficult to regard it as an act for the public interest, and convicted the defendant.

3) Determination of the immediate deliberation

The facts charged in the instant case are premised on the premise that B, at least on December 3, 2015, sought to provide the Defendant with a document terminating the creation of a right to collateral security, and the Defendant denied the foregoing document from the investigative agency to the trial.

As evidence of the above premise facts, G, N’s respective statements, delivery inquiry documents (Explosion No. 44 of investigation records), etc. ① G’s statement is merely the purport that 200,000 won of collateral against the Defendant, and B’s head office with approval from the head office around January 2015 to cancel the right of collateral security, and only the certificate of completion of registration was issued because the Defendant, who was the person in charge of Ulsan Branch, did not want the termination of the right of collateral security, did not want the termination of the right of collateral security (explosion No. 345 of the trial record). According to the statement to the effect that “the Defendant, at any time, was unable to want the termination of the right of collateral security (explosion No. 2 and No. 3 of the trial record of the first instance court), it is difficult to view that the Defendant’s statement was inconsistent with the Defendant’s statement that it was difficult to receive the document at least 400,000 won and that it was impossible to receive the document.

Therefore, the evidence submitted by the prosecutor alone is insufficient to conclude that the content of the Defendant’s pocket book is false because it is difficult to view that the Defendant provided documents necessary for the termination of the establishment of the right to collateral on January 2015, but only received the original documents for the establishment of the right to collateral and subsequently received the documents for the termination of the establishment of the right to collateral, or that B provided documents for the termination of the establishment of the right to collateral from October 23, 2015. This part of the Defendant’s assertion has merit.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the following is ruled again after pleading, since there exists a ground for ex officio reversal, and there is a ground for misunderstanding of facts among the defendant's appeal.

【Discretionary Judgment】

The summary of the facts charged in this case is as stated in the above 2.b.1 (b) and this constitutes a case where there is no proof of crime as seen in the above 2.2.2.3 (b) and thus, a not-guilty verdict under the latter part of Article 325 of the Criminal Procedure Act is rendered, and the defendant's consent cannot be obtained due to his/her failure to appear on the sentencing date. Thus, the summary of this judgment should not be publicly announced in accordance with the proviso of Article