Defendant

Defendant

Inviting type (prosecution, public trial)

Attorney Park Dong-dong et al.

Seoul Central District Court Decision 2012 Godan4875 Decided February 20, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

1. Summary of grounds for appeal;

A. Error of mistake

1) misunderstanding of facts as to whether the remarks relating to the borrowed name account are false or false

Of the instant remarks subject to the determination of the instant case, suicide motive is not subject to judicial determination because it cannot be objectively proven, and the time when a name account is discovered in relation to “the day before running,” and it is not subject to false determination because it is not only a detailed concept that damages the social value or evaluation of a specific person. Therefore, it is not subject to false determination because the term “one hundred thousand won check” is nothing more than a detailed concept that damages the social value or evaluation of a specific person. The term “the name account” is not a specific method for receiving money, but only a specific method for receiving money. In addition, the term “large amount” was used by the President, emphasizing that he/she should receive money if he/she receives money, and does not specifically refer to the account that remains in large balance.

The core is whether or not Nonindicted 1 received illegal money that is held responsible for the former president, and whether or not there is such evidence is found, and the check that can be the proviso to trace the money can also be the borrowed account, and the account that can be the proviso to this day, and even in the case where the following account appears to have been used for the borrowed account, it can be used as a borrowed account. The important part is the existence of the borrowed account, and the defendant is the existence of the borrowed account, under the premise that there was a receipt of money and valuables directly or morally liable to the former president or by his family in order to mention the fact that the borrowed account was discovered in the course of investigation, and if there was such receipt of money and valuables, it can be viewed as a borrowed account.

The circumstance that the Defendant became aware of the statement of this case and whether the borrowed name account referred to the account of an administrative officer is false or deceptive issues, and the prosecutor bears the burden of proof of the facts charged of this case. According to the results of the investigation by the Central Investigation Office of the Supreme Prosecutors' Office on June 12, 2009, it is recognized that Nonindicted 5 offered USD 6,400,00 to the former president as a bribe. Thus, the above announcement itself does not constitute a false or false statement that Nonindicted 1 transferred a large amount of money, which the former president may be responsible, to another person’s name, that is, the borrowed name account, which is, the borrowed name account, among the 5,00,00 U.S. dollars received by Nonindicted 6, 1 former president’s children, entered the company of insurance with the major shareholder, and that Nonindicted 14 was punished as a violation of the Foreign Exchange Management Act, it cannot be viewed as a false statement in the part of this case.

2) misunderstanding of facts as to whether the remarks relating to the borrowed account were false or not

In addition, the Supreme Prosecutors' Office, through the media, was aware of the fact that Non-Indicted 1 had been punished for a large amount of investigations related to Non-Indicted 1, and if the former president was summoned with objective evidence at the time, the result of the announcement by the Central Investigative Office of the Supreme Prosecutors' Office is consistent with the result of the announcement by the Central Investigative Office of the Supreme Prosecutors' Office of the Supreme Prosecutors' Office. There was no reason to force the Defendant to make a false representation, and there was no motive, and there was no motive to do so, and there was no confidence that the security of duties would be maintained by taking place only against police officers.

(iii) misunderstanding of facts as to the falsity of the parts related to special inspections

Since Non-Indicted 1’s election, the Democratic Party, which demanded a special autopsy after Non-Indicted 1’s election, did not request a special autopsy any more than after the expiration of Non-Indicted 1’s 49 period of 49 period of her former president, and rather rejected the special autopsy required by Hanna Party, and the statement that the account for the name of the vehicle was discovered cannot be seen as false facts, there is no evidence that this part of the statement is false.

4) misunderstanding of facts as to whether the portion of the speech related to the special examination is false

From Nonindicted 17, the Defendant, along with Nonindicted 17’s talk about the borrowed-name account, was also involved in a special inspection, and there was no perception that this part was false as if there was no false awareness about the borrowed-name account.

5) Nevertheless, the lower court found all of the facts charged in the instant case guilty, and the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment (to the extent of supplementing the grounds for appeal only to the extent of supplement in case of supplement of the grounds for appeal filed on April 12, 2013).

B. Unreasonable sentencing

The statement in this case was made to the purport that the police in the suppression of demonstration should have the right to enforce the law at a general level. The statement was made to the purport that the defendant would not be an issue at the time when the statement was made. After the defendant was designated as a candidate for the National Police Agency, the contents of the statement became known, the defendant did not exercise his right to defense against the fact, and the defendant expressed his awareness to the bereaved family members of the former president. The defendant did not intend to emphasize the implementation of the law at the education site, but did not harm the reputation of the deceased and his family. In light of the sentencing conditions such as the fact that the former Commissioner General of the National Police Agency contributed to the proper settlement of the Korean demonstration culture at the time of his/her office, realizing personnel justice, corruption and corruption, etc., which led the police reform, which led the people's trust drastically, it is too unfair to punish the sentence sentenced by the court below (No. 10 months).

2. Determination:

A. As to the assertion of mistake of fact

(i) the criteria and object of the determination;

A) Burden of proof

Inasmuch as the facts constituting the elements of a crime charged in a criminal trial are the prosecutor’s burden of proof, whether it is a subjective element or an objective element, the prosecutor who is the active party must prove the fact that there was a loss of social reputation of the person charged for defamation through an information and communications network indicating false facts under Article 70(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008). The prosecutor must prove all the burden of proof that the alleged facts do not conform to objective truth, and the defendant knew that the alleged facts were false. However, when determining whether the above burden of proof was fulfilled, the prosecutor who is the active party must prove the absence of a specific act at a specific period and at a specific place without reasonable deliberation. However, it is difficult to prove the absence of facts that have not been embodied in an unspecified period and at a specific place, while it is more easy to assert and prove such facts. Thus, such a legal principle applies to defamation under Article 201 of the Criminal Act when determining such facts.

In this case, in light of the above legal principles and the contents of the statement in this case, it is reasonable to view each fact of the facts alleged by the defendant as a specific act within a specific period. Therefore, the prosecutor bears the burden of proving that each of the above facts is false and that the defendant was aware of such falsity.

B) Important parts of the instant speech

(1) In order to establish a crime of violation of Article 307(2) of the Criminal Act, the offender must publicly indicate the fact, and the publicly alleged fact should be a fall in the social evaluation of the person, and the offender should have recognized that such fact is false. In determining whether the publicly alleged fact is false or not, in cases where the important part is consistent with objective facts in examining the overall purport of the publicly alleged fact, it cannot be deemed a false fact even if there is a little difference from the truth or somewhat exaggerated expression (see Supreme Court Decision 2010Do6343, Nov. 15, 2012). The foregoing legal principle is the same in determining the crime of defamation of a deceased person under Article 308 of the Criminal Act.

(2) On March 31, 2010, the Defendant, as the director of the Seoul Provincial Police Agency, took a lecture for about 398 participants on the special culture for about one hour, including the following: (a) the Defendant, as the director of the Seoul Provincial Police Agency, for the purpose of preparing for G20 regular meetings; (b) responding to large-scale assemblies and demonstrations; and (c) establishing a cultural unit with good faith; and (d) the Defendant, as the director of the Seoul Provincial Police Agency, for about one hour on the part of 398 participants; and (c) the Defendant’s statement before and after the speech (the door containing the instant statement

“. Therefore, I would like to see that we will see whether it is appropriate to hold a meeting with 14 dynamics. It is hot to establish the legal order of global standards. The duty of the Seoul Police and the security police is to properly manage and respond to the scarcitys even though there are many difficulties. In order to do so, I would like to say that it is necessary to properly understand the substance of the destroying force of the law and order. I would like to say that it is necessary to properly understand the substance of these people. In addition, I would like to make it possible for the government to respond to the 2008 large-scale assembly, including Madle scars? In addition, I would like to make it possible for those who have been rapeed in the process of the Internet.

작년 ◁통, 공소외 1 전 대통령 5. 23. 부엉이 바위 사건 때 막 또 그 뒤로 뛰쳐나왔지 않습니까. 그런데 여러분들, 공소외 1 전 대통령 뭐 때문에 사망했습니까? 뭐 때문에 뛰어내렸습니까? 뛰어버린 바로 전날 계좌가 발견됐지 않습니까, 차명계좌가? 10만 원 짜리 수표가 타인으로, 거액의 차명계좌가 발표돼, 발견이 됐는데, 그거 가지고 아무리 변명해도 변명이 안 되지 않습니까. 그거 때문에 부엉이 바위에서 뛰어내린 겁니다. 그래서 특검 이야기가 나왔지 않습니까. 특검 이야기가 나와서 특검 하려고 그러니까 공소외 2 여사가 민주당에 이야기를 해서 특검을 못 하게 한 겁니다. 그 해봐야 다 그게 드러나게 되니까. 그걸 가지고 검찰에서 뭐 부적절하게 수사를 잘못해서 그런 것처럼, 이 정부가 탄압한 것처럼 그렇게 하면 안 되지 않습니까. 우리 경찰 조금 뇌물 받고 하면 바로 파면 당하고 형사입건 당하는데, 대통령 했던 사람이라고 해서 그게 드러나게 됐는데, 그걸 수사하지 말고 덮으라는 이야기밖에 안 되지 않습니까.

However, this case, with the view to gathering large-scale citizens in viewing and attempting to take this step, is likely to have led to the destruction force of the legal order. This is the substance of the destruction force of the legal order. This means that this person creates a will letter that has been sunken at the present astronomical wave, and is spreading anti-government sentiments. If this is caused by a scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics.

(3) In the instant case, in light of the Defendant’s assertion that the aforementioned legal principles, the Defendant’s defense counsel 1 that the entire contents of the testimony before and after the instant speech, and the legal order destruction force, were included in one case, and the Defendant’s assertion that the substance of the illegal demonstration would come out at a proper level, the entire purport of the instant speech is that the former president was committed suicide due to improper investigation by the prosecution and the pressure of the government, but the entire purport of Nonindicted 1’s speech is that, however, it is due to the discovery of a large number of borrowed accounts in which the check was deposited at KRW 10,000 as of the day immediately before the suicide, and thus, even though the introduction of the special inspection system was discussed, it was impossible for Nonindicted 2 to have a special autopsy on the democratic party, so it is not a assertion of the demonstration group, but it appears to be purport that the strict response against such unlawful demonstration would be changed.

Therefore, the important part of the instant statement was that (i) during the prosecution investigation, Non-Indicted 1’s death immediately preceding the 3th day of the death of Non-Indicted 1’s former president (which could serve as the motive for self-injury) was discovered, and (ii) Non-Indicted 1’s introduction of the special inspection system following the death of Non-Indicted 1’s former president was conducted, but Non-Indicted 2’s introduction of the said special inspection system was made to prevent the said borrowed account from being revealed.

2) Part of the borrowed name account in the instant statement

A) Defendant’s assertion as to the meaning of the borrowed account

In the written statement of June 7, 2011, the Defendant stated that the Defendant did not mention Nonindicted 5’s account that Nonindicted 6’s account was transferred to Nonindicted 6’s account, Nonindicted 1, the president of the former president of the Republic of Korea, in mind, the amount of USD 5,400,00,00,00,000, which was transferred to Nonindicted 6’s account, and that Nonindicted 3 and Nonindicted 4’s account was not mentioned as large amount of borrowed accounts. On May 9, 2012, the Defendant made a statement that it was true at the time of investigation by the prosecution once, and that it was not considered in mind, 5), 3, and 4,000,000,000 won, including USD 5,00,000,000, which was transferred to Nonindicted 6’s account, which was the first executive officer of the former president of the Republic of Korea, and 3,4,000,000.

In addition, at the time of the argument of the court below, the defendant argued that the former president was able to bring about his responsibility or trace the contents that could be the proviso thereof, and that the second person was 9) and that the second person was able to understand that the second person’s account was an account managing the money that was not determined like a bribe, and that the second person was 10). On the other hand, although the defendant’s defense counsel did not talk with a certain account at the time of the statement of this case, the second person’s account in this case refers to Nonindicted 3 and 4 because he talks about the account related to the former president, although he did not talk about the second person’s account at the time of the statement of this case, the second person asserted that the second person’s account was included in Nonindicted 6’s account and Nonindicted 8 and 9’s account related to Nonindicted 7’s senior secretary in the sense that the former person is morally responsible.

B) Whether the account is Nonindicted 6, 7, 8, or 9

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(1) Status of investigation into Nonindicted 1’s former president

○ At the time of receipt of USD 1,00,000,000 from Nonindicted 2 through the former president, the Internet homepage on April 7, 2009 and Nonindicted 6,000,000 through Nonindicted 1’s former president, and the Internet homepage.

○ Investigation into Non-Indicted 2’s summons on April 11, 2009

○ A search and seizure warrant on April 20, 209 (subject: Non-Indicted 11, 3, 4, 12, 10, 13, and period: From June 1, 2005 to March 31, 2009)

○ Detention on April 21, 2009 Nonindicted 7

○ Investigation on April 23, 2009 by Nonindicted 3

○ Investigation into Summons by Nonindicted Party 1 on April 30, 2009

○ Submission of a statement related to the sources of use of USD 1 million on May 7, 2009 by Non-Indicted 2

○ Verification of the remittance from May 9, 2009 to May 11, 2009 by Nonindicted 5 to Nonindicted 10 to USD 400,000.

on May 20, 2009, request for criminal judicial assistance in relation to American housing contracts to the United States and Hong Kong.

○ Death of Nonindicted 1 former President on May 23, 2009

(2) On June 12, 2009, the Supreme Prosecutor's Office of the Central Investigation Agency of the Supreme Prosecutors' Office announced the investigation results of Non-Indicted 5's ○○ Unemployment, the president, and the relationship between

○ In the subject of investigation: The suspicion of political and related gambling, the suspicion of tax investigation and the suspicion of bribery to Nonindicted 1’s former president.

○ Results of the Cruel Investigation into Labor Relations and Labor Relations

Prosecution by Nonindicted 18 Council members, etc. who receive illegal political funds from Nonindicted 7’s senior secretary, etc. who received a bribe from Nonindicted 5 of the ○○ unemployment president, etc.

○ Results of the Cruel investigation of the tax investigation

The indictment of Nonindicted 5, Nonindicted 19, Nonindicted 20, Nonindicted 15, and the Chairperson of Nonindicted 20, who received money and valuables from Nonindicted 5 for the purpose of a tax investigation for ○○ Unemployment, etc.

○ Results of the investigation of the bribery by the former president of Nonindicted Party 1

- The suspicion that the former president of Nonindicted Party 1 accepted USD 6.4 million from Nonindicted Party 5

- Former President 1: Termination of internal investigation (no prosecution right) and Non-Indicted 5: Termination of internal investigation (Suspension of admission)

(3) The process and result of the trial on Nonindicted 7

○ Prosecution on May 8, 2009

○ Sentence 6 years of imprisonment with prison labor for the first instance on August 25, 2009

○ Dismissal of an appeal by the second instance on December 18, 2009 (Defendant)

○ On May 27, 2010, the appeal dismissed by the Supreme Court (Defendant)

○ Criminal facts

- The Secretary General of the Office of the President from September 2003 to February 2008

- On January 2005, Nonindicted 5 received cash of KRW 200,000 for gift certificates, KRW 500,000 for gift certificates, KRW 300,000 for Haman on August 23, 2006, and embezzled KRW 1.25,50,000 for presidential special activity expenses on six occasions from November 23, 2004 to July 30, 2007, and concealed criminal proceeds by depositing KRW 1.555,00,00 in the name of Nonindicted 9 and 8, a sum of which is KRW 1.550,000,00 for bond purchase, securities account, etc.

(4) Determination

As seen earlier, prior to the summons, investigation, or death with Nonindicted 1’s former president: ① USD 1,00,000,000 for Nonindicted 2’s woman ② USD 5,000 for Nonindicted 6’s woman ③ Nonindicted 10’s KRW 4,50,000 for Nonindicted 7’s KRW 1,550,000 for Nonindicted 7’s KRW (300 million + 1.25,000 for KRW) was already investigated or reported. In addition, in the written statement submitted to the prosecution, the Defendant stated in the prosecutor’s office that “at the time of reporting, according to the media, it was confirmed that the Defendant’s prosecutor’s investigation process with Nonindicted 1’s former president transfers USD 5,00 to Nonindicted 6’s account, and that Nonindicted 5,40,000 for KRW 6,00 for KRW 7,00 for Nonindicted 1’s former president’s account was not considered as a large amount of remittance.” However, the Defendant’s account was not considered as Nonindicted 1’s account.

The Defendant’s statement of this case is an important factor that a large amount of 100,000 won check has been established. It is reasonable to view that “the borrowed account in which one million won check has been deposited” as shown in the facts charged refers to a new account other than the one so far known. The above contents are already revealed before the death of the former president of Non-Indicted 1, and are not a new account, but not a new account. It cannot be deemed that both ①, ②, ③, ④ all of the above contents are the borrowed account with US dollars or cash or credit, etc., and thus, the Defendant’s assertion is without merit.

C) Whether the account is in the name of Nonindicted 3 and 4

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(1) A search and seizure warrant dated April 20, 2009

○ Suspect: Nonindicted 7

Account: Non-Indicted 11 (Administrative Secretary General, Secretary General, Office of Secretary General, Office of Secretary General), Non-Indicted 3, 4, 12 (Administrative Secretary General, Office of Secretary General), 10, 13 from June 1, 2005 to March 31, 2009

○ Grounds for search and seizure: To find out the source of funds received from Nonindicted 7’s suspicion of acceptance of bribe and acceptance of bribe;

○ Necessity of requesting a search and seizure warrant

- On June 26, 2007, when Non-Indicted 14 and 10,00 US dollars were staying in the United States, from Non-Indicted 14's domestic account on June 26, 2007 to a foreign account, and on the same day, US$ 100,00 was exchanged from Non-Indicted 10's domestic account on June 7, 2005 to Non-Indicted 13's foreign account. On June 29, 2007, US$ 1,000 that Non-Indicted 7 received from Non-Indicted 5 was sent to Non-Indicted 20,000 US dollars. Thus, it is possible that the party in charge of the business was able to remit the expenses spent abroad while managing Non-Indicted 14 and 10's account, and it is necessary to ascertain whether Non-Indicted 10,000 US dollars and the direct person in charge of the financial transaction was able to use it as the money exchange account.

(2) Analysis of accounts with Nonindicted 3 and 4

- With a large number of KRW 100,000 checks deposited (except for checks issued in the name of the President, Security Office, and President and Vice President)

○ A New Bank with Non-Indicted 3 (Account Number 2 omitted)

- Balance: maximum 19,959,800 won ( December 2007), most marina status;

- Major withdrawals: department stores, card settlement, insurance premiums, and electricity charges;

- Payment details of KRW 100,000 Check: from February 2, 2008 to September 67, 2008 (Deposits from February 22, 2008 to June 15, 2008)

○ National Bank in the name of Nonindicted 4 (Account Number 3 omitted)

- Balance: maximum 78,91,497 Won ( May 2008) and 2 million won in substitution;

- Major withdrawals: Insurance premiums, electrical charges, communications charges, and educational expenses;

- 100,000 won Check: Chapter 18 of October 2007 to October 18, 2008 (Notice 4 issued before October 2005)

○ National Bank in the name of Nonindicted 4 (Account Number 4 omitted)

- Balance: 85 million won ( April 2008) and in lieu 3 million won before and after the end of

- Major withdrawals: Insurance premiums, communications fees, and taxes;

- 100,000 won Check: from March 24, 2006 to March 24, 2008 (No. 13 copies before 2005)

○ National Bank in the name of Nonindicted 4 (Account Number No. 5 omitted)

- Balance: maximum 83,020,251 won ( April 2008) and in lieu of one million to three million won:

- Major withdrawals: Mart, Railroad, and Reading Centers

- 10,000 won Check: from July 2005 to December 88, 2008 (No. 11 published before December 2005)

○ Results of deposit of KRW 100,000 Check with Nonindicted 3 and 4 accounts

- Deposits from July 2005 to October 197, 2008 (No. 82 published before 2005)

(3) Determination

The next borrowed account refers to “the account managing the money that was not determined as being brain as the same as the brain” 14 week as the Defendant’s own statement, and it means “the spouse, children, and children of the former president and the former president of Nonindicted Party 1, including his or her father, actually owns the money that he or she actually owns in the account.” As stated in the instant facts charged, the term “the borrowed borrowed account that may be the motive for suicide” refers to a new borrowed name account that exceeds the meaning of the simple borrowed name account and is able to bear a big responsibility and burden on the President of Nonindicted Party 1.

According to the evidence duly adopted and examined by the court below and the court below, 10,000 won check 82, which was issued before November 14, 2008 to the account in the name of Nonindicted 3 and 4, and Nonindicted 3 received 100,000 won check from Nonindicted 2 before February 2008 to September 2008, which was deposited in the account in the name of Nonindicted 3’s new bank (Account Number 2 omitted) in the court of the court below, 54, which was deposited in the account in the name of Nonindicted 3 and 4 before September 2008. Of the check deposited in the above account, it is difficult to view that Nonindicted 4’s new account was transferred from the account in the name of Nonindicted 4’s bank (Account Number 6 omitted) to Nonindicted 14, 2008 to the following account, and it is difficult to view that the account was deposited in the account in the name of Nonindicted 34, 204.

① The balance of the accounts in Nonindicted 3 and 4 is nothing more than KRW 83 million, and it does not exceed KRW 83 million.

② On October 23, 2007, 200, 50 million won deposited at the Dong Office of New Bank (Account Number 2 omitted), which is a major transaction in one’s own account, and on October 24, 2007, 50 million won deposited at the 24th of the same month, December 31, 2007, and on January 1, 2008, KRW 16 million deposited at the new bank (Account Number 7 omitted), most of Non-Indicted 200,000 won deposited at the 200,000 won deposited from the new bank (Account Number 5,00,00 won and KRW 5,000 deposited at the same day, and KRW 20,000 deposited at the account number of Non-Indicted 25,000,000 won deposited at the account number of Non-Indicted 25,000,000 won deposited at the account number of Non-Indicted 320,000 won deposited at the account.

③ Nonindicted 4 stated that the deposit amount of KRW 70 million in the transmitting bank account (Account Number 5 omitted) from the account on April 7, 2008, which is a major transaction in one’s own account, and KRW 82 million in KRW 21,000,000 in KRW 72,000,000,000 in KRW 4 omitted), the deposit amount of KRW 17,7,000 in the National Bank Administration Branch (Account Number 4 omitted) account is related to apartment sale, and it appears that the deposit amount of KRW 23,00,00 in our bank (Account Number 8 omitted) account was 20,000 won in KRW 8,000 in KRW 10,000 in KRW 25,000 in KRW 208,000 in KRW 208,000 in KRW 268,000,000 in KRW 268,00 in New Bank account.

④ Nonindicted 3 and Nonindicted 4, as an administrative officer in the second attached office of the Blue House, supported Nonindicted 2’s contribution, and carried out private work. Nonindicted 3 and Nonindicted 4 appear to have used Nonindicted 2’s private disbursement incidental to his own financial transaction. Even if the total amount of the check issued to the said account from June 1, 2005 to March 31, 2009 exceeds KRW 9.9 billion and the total amount of cash deposit exceeds KRW 290 million, the following should be considered: (a) KRW 100,000,000,000, which was deposited at the same time for about four years; and (b) KRW 109,000,000,000,000, which was deposited at the same time, is very diverse; and (c) KRW 390,00,00

⑤ From July 2005 to October 2008, Nonindicted 3 and 4 accounts deposited KRW 100,000,000 from around July 2005 to around October 2008, the check was deposited in the total of KRW 19,70,000,000, which was issued before 2005, and the check was merely KRW 82,00,000 in total.

6) When the prosecutor conducted the second investigation by the prosecution, the Defendant also stated that he was not a borrowed name account that he said, when the prosecutor presented Nonindicted 3 and 4’s account details, etc.

7) Nonindicted 25, who delivered the statement of Nonindicted 24 to the Defendant by Nonindicted 24’s former prosecutorial office, stated in the trial court that Nonindicted 24 reported the evidentiary materials submitted by the Prosecutor’s Office in this case, and stated that “I would like to keep the original account out of the original account?” and “I would like to keep the original account back at any time,” and that Nonindicted 3 and 4’s account is not a borrowed account.

④ The Defendant stated at the prosecution that there was a fact that the Defendant deposited more than one billion won, such as a multiple number of 100,000 won check, in the account of the Korea Office of Bank Affairs in the name of two female administrative officers in the office of Blue House 2, 2004, and that it was withdrawn and used after the retirement of the former president around February 2, 2008, but there was not only the account of the Korea Office of Bank Affairs in the name of Non-Indicted 1, 3, and 4, but also there was no other bank account in the name of Non-Indicted 3, and 4, as seen above, and there was no other bank account in the name of Non-Indicted 3 and 4, which was deposited more than one billion won around 2004, and that the amount was withdrawn after the retirement of the former president

In addition, the Defendant stated to the effect that “the 100,000 foot constitutional check was completely deposited in more than 1 billion won in a large amount in the name of two executive officers in the office attached to the Section II, and that Nonindicted Party 1 was judged to have been seriously aware of his name account in the immediately preceding day of his retirement from the office. Nonindicted Party 1 confirmed the place of using the money deposited in this account at the time of his retirement from the office of the former president. Since the investigation results revealed that the money was used by the former president and his family members, it is the name account.” However, in light of the amount of KRW 10,000 check deposited in the account in the name of Nonindicted Party 3 and 4, and the details of the search and seizure warrant on Nonindicted Party 3 and 4, etc., it is determined that the above statement was not a statement.

① The search and seizure warrant for Nonindicted 3 and 4’s deposit accounts was issued on April 20, 209, and the prosecution investigation was conducted on April 23, 2009 with respect to Nonindicted 3. In light of the fact that Nonindicted 3 and 4’s accounts were conducted on April 30, 2009, the prosecution investigation was conducted on April 30, 2009, it is difficult to view that Nonindicted 3 and 4’s accounts were “new borrowed-name accounts that may have a great responsibility and burden on the former president.”

Therefore, this part of the defendant's assertion is without merit.

D) Whether the account is in the name of Nonindicted 11, 12, 10, and 13

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(1) The trial process against Nonindicted 10

around October 207, Non-Indicted 10 of the former president’s wife, Non-Indicted 26 purchased △△△△△△△ apartment (water omitted) located in the U.S. New Airport located in △△△, and made the down payment at USD 400,000,000, which Non-Indicted 5 sent by Non-Indicted 5. On January 2009, Non-Indicted 10,300,000 won in cash received from Non-Indicted 2 in the early 209, who was charged for the payment of the intermediate payment through the way of exchange, etc. through Non-Indicted 27 and 28, and was punished for violating the Foreign Exchange Transactions Act.

(2) Analysis of Nonindicted 11, 12, 10, and 13’s accounts

When excluding securities accounts and trust accounts, from June 1, 2005 to March 31, 2009, the accounts in the name of Nonindicted Party 11, 12, 10, and 13 are no more than KRW 10 million. The balance of the accounts in the name of Nonindicted Party 11 (Account Number 9 omitted) is no more than KRW 10 million, and the balance of the accounts in the name of Nonindicted Party 11 (Account Number 10 omitted) and the national bank (Account Number 11 omitted), the new bank (Account Number 12 omitted), the account in the name of Nonindicted Party 10 (Account Number 12 omitted), and the balance of the account in the account number of the new bank (Account Number 13 omitted), but was mainly deposited in the card amount, etc.

(3) Determination

As seen earlier, USD 400,000 of the non-indicted 10 is already investigated or reported, and the part of the non-indicted 10's violation of the Foreign Exchange Transactions Act is also received in cash. The account from June 1, 2005 to March 31, 2009, including the balance of the non-indicted 11, 12, 10, 10, and 13, and the balance of the account from June 1, 2005 to March 31, 2009, is only a million won or mainly deposited with the card payment, etc., it cannot be deemed as a borrowed account of "one hundred thousand,000 won check is deposited." Thus, the defendant's assertion on this is without merit.

E) According to the evidence submitted by the prosecutor, it seems that there was no discovery that “a large amount of 100,000 fake Check was deposited” which manages Nonindicted Party 1’s former president or his family members’ non-financing (illegally accepted money) in addition to the contents reported in the media.

The Defendant’s warrant of search and seizure on April 20, 209 was merely for investigating the source of USD 200,00 transferred or exchanged from Nonindicted 14, 10 on June 26, 207 to Nonindicted 10, and there is a possibility that other 11, 12, 10, and 13 financial accounts in addition to Nonindicted 3, 4 may remain strawing. Of the 100,00 won check which was actually deposited into the account under Nonindicted 4’s name, two copies of the 100,000 won check which was issued by Nonindicted 8’s corporate bank account and was merely for Nonindicted 10,000 won check account which was issued by Nonindicted 1, 208, and the Supreme Prosecutors’ Office’s request was made on May 8, 2009 that the 10,000 won check account was kept under the name of Nonindicted 1, 208’s new financial institution’s name.

3) Part concerning the special inspection in the instant statement

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below and the court below.

A) The assertion regarding the introduction of the special inspection system by a democratic party

○ On March 27, 2009, the Democratic Party Nonindicted 29 Roster.

- “The Prosecutor’s Office will not investigate the first-class personnel inside the Prosecutor’s Office and the passport,” “The Democratic Party shall provide that the prosecutor’s investigation of this case shall be carried out as a voting investigation to kill a democratic party,” “I am fright to fright to fright,” “The Democratic Party shall require a non-discriminatory and a full-scale investigation of the non-indicted 5 case,” and “I am to introduce a special prosecutor unless the Prosecutor’s Office is unable to do so.”

The legislative bill on the appointment, etc. of the special prosecutor to investigate the truth of Non-Indicted 5, Non-Indicted 15, Non-Indicted 19, and Non-Indicted 31, etc. on the part of Non-Indicted 82, including Non-Indicted 16, Non-Indicted 15, Non-Indicted 19, Non-Indicted 31, etc. on the part of the President of Democratic Party 30 et al

- In order to conduct fact-finding in a situation where the substance of Nonindicted 19, 15, 31, and 32, which is the key point of Nonindicted 16 President, was not clearly revealed in the prosecutorial investigation, and the overall confusion of the state is aggravated due to an investigation into a low-level retaliation against the former political authority, the special prosecutor investigation subject to the special prosecutor investigation for the following reasons: “○○ Unemployment (Nonindicted 5) before and after the 17th presidential election, offered 1 billion won to Nonindicted 16 candidates, including the Chairperson of Nonindicted 15 and 20, and Nonindicted 15 and 20, which was provided by the Chairperson of Nonindicted 3 billion won to Nonindicted 16 candidates; the suspicion of illegal funds amounting to 3 billion won; the suspicion of illegal funds amounting to 3 billion won to 30 billion won to be provided to Nonindicted 333 former candidates; the suspicion of Nonindicted 3’s former Commissioner of the Regional Tax Office related to the planning of the National Tax Service; the special prosecutorial Office’s 15 and 35th Special Measures against Nonindicted 35.

○ Persons representing Nonindicted Party 29 Democratic Party on June 4, 2009

- Non-Indicted 5-Non-Indicted 15 Eypts can access to substantive truth only with the investigation of state affairs and special examinations. 36)

○ Nonindicted Party 36 of the Democratic Party on June 7, 2009, Nonindicted Party 36 of the Republic of Korea

- Korea-China still does not seem to have any response to the apology, special inspection, investigation, etc. of Nonindicted Party 16 that is demanded by the Democratic Party in relation to Nonindicted Party 1’s letter, the former president, and the former president. It calls for answers from Korea-China 37).

○ Articles on July 12, 2009

- 민주당 공소외 37 대표는 “국회 파행 사태를 언론악법 날치기에 역이용하려는 한나라당의 사악한 기도를 막기 위해 민주당은 국회 정상화라는 결단을 내리게 됐다”고 말했다. ☆대표(공소외 37)는 “5대 요구사항을 관철시키기 위한 우리의 투쟁은 지금까지와 마찬가지로 원내에서 더욱 가열차게 전개될 것이며, 우리는 끝까지 투쟁해 반드시 관철시킬 것”이라고 밝혔다. 참고로 지금까지 민주당은 공소외 1 전 대통령 서거와 관련해 △ 공소외 16 대통령의 사과 △ 정책기조의 전면 전환 △ 공소외 1 전 대통령의 죽음을 초래한 책임자 처벌 △ 공소외 1 전 대통령 수사에 대한 국회 국정조사와 공소외 5·공소외 15 특검 실시 △ 국회 내 검찰 제도 개선 특별위원회 설치를 요구해 왔고 이 요구가 받아들여지지 않으면 6월 임시국회에 응하지 않겠다는 입장이었다 주38) .

○ A representative speech of Nonindicted 36 members from a democratic party on November 4, 2009 by the representative speech of the negotiating party of Nonindicted 36 members.

- The letter of Nonindicted Party 1’s letter of the former president is an excessive investigation by the prosecutor’s office and a political retaliation by the political retaliation of this government. In order to solve this problem, our Democratic Party has requested Nonindicted Party 16’s death and the investigation and special prosecutor’s examination for the truth-finding, and the conversion of the prosecution reform and the national political assistance, but the political party was now going beyond the control of the government. While the time has elapsed, the case of Nonindicted Party 1’s letter of election by the former president cannot be taken place. In any case, our Democratic Party will not have the string of the resolution of this problem. It will be said that in any case, we will not have the string of the resolution of this problem. It will not lose the beginning and resolve it by the string of time.

B) the board;

The contents of the introduction of the special prosecutor system asserted in the Democratic Party before the death of Nonindicted Party 1 are subject to the problems of the prosecution investigation against Nonindicted Party 1, including Nonindicted Party 15, etc., who was involved in Nonindicted Party 5’s case, and publication of Nonindicted Party 16’s past president’s corruption and the fact that Nonindicted Party 1 was suspected, and there is no connection with the borrowed name account related to Nonindicted Party 1’s former president. The democratic party continues to assert the introduction of the special prosecutor system, but it appears that the government and the ruling party opposed to the introduction of the special prosecutor system. Although the Defendant opposed to the introduction of the special prosecutor system after the issue of the Defendant’s remarks in the instant case, this part of the statement is merely the fact after the death and the instant remarks of Nonindicted Party 1.

4) Whether the instant remarks are false or false

Since the crime of publishing false facts under Article 250(2) of the Public Official Election Act is a constituent element of the crime of publishing false facts, an actor must be aware of the fact that it is false, and the existence or absence of such subjective perception is difficult to know or prove it outside due to its nature, it is inevitable to determine by comprehensively taking into account various objective circumstances, such as the Defendant’s educational background, career, social status, process of publication, time of publication, and anticipated ripple effect, based on the contents and identity of the facts made public, the existence and content of the materials, and the source and awareness of the facts expressed by the Defendant. Such a crime of publishing false facts is established by willful negligence (see Supreme Court Decision 201Do3824, Jun. 24, 2011). The foregoing legal principle also applies to the judgment of defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, and of defamation by defamation under Article 308 of the Criminal Act.

In this case, the Defendant asserted that, at the time, he was aware of the government high-ranking position at the time, the Defendant was aware of the fact that Nonindicted Party 1 was investigated by the president of Nonindicted Party 17, who was in a position where the central investigative body of the Supreme Prosecutors' Office could know the investigation status of the Supreme Prosecutors' Office, and that he was aware of the same contents as the instant remarks from Nonindicted Party 17, who was in a position to know about the investigation status of the central investigative body of the Supreme Prosecutors' Office, and that he was aware of the fact that the instant remarks were false (the Defendant was aware of the fact that Nonindicted Party 1 was investigated by the former president of the prosecution through press reports in 2009 and the so-called fake, etc., and that Nonindicted Party 1 was aware of the fact that he was under investigation by the prosecutor, and that he was in an extreme choice, and that Nonindicted Party 1 had been

However, it is recognized that the defendant's false recognition is recognized in the following respect, which is recognized by the evidence duly adopted and investigated by the court below and the court below.

A) On January 2010, the Defendant met the 2nd president of Non-Indicted 17, as other persons, after he was appointed by the director of the Seoul Local Police Agency, and stated that the third third of the instant speech was only turned out (No. 40).

B) However, Non-Indicted 17 testified that Non-Indicted 17 was present as a witness in the trial of the political party and that Non-Indicted 16 was guilty, and there was no fact that Non-Indicted 16 was dicted by the President of the State Council affiliated with the State Council at the time, but did not deal with the same information as the contents of the instant speech. Of the duties, there was no part related to the investigation by the prosecution, and there was no fact that there was no fact that the Defendant was only the Defendant before or after the instant speech, and there was no fact that the Defendant toldd the Defendant before the instant speech with the purport that the Defendant was aware, or that there was no fact that there was no fact that the Defendant told the same content as the instant speech.

C) In this case where there is no evidence to reject the credibility of Nonindicted 17’s testimony as above, the argument that the Defendant took out the contents of the instant speech from Nonindicted 17 cannot be accepted as it is, and even if Nonindicted 17 took the contents of the instant speech as the speaker and the Defendant’s assertion, it is difficult to view the contents of the instant speech as true in the following point.

① First, as the Defendant’s assertion, Nonindicted 17 had been met up to 3 times prior to the instant speech, and it is difficult to understand that the instant speech was first made to a person who did not reach several times prior to the instant speech, or that said talk was believed to have been made or believed to have been made.

② In view of Non-Indicted 17’s position at the time as Nonindicted Party 17 (the president of the ▽▽▽▽△△ Research Institute), it appears that Non-Indicted 17 was not in the position to know the investigation status of the Central Investigation Agency of the Supreme Prosecutors’ Office with respect to the former president of Non-Indicted 1. The Defendant also believed that Non-Indicted 17 was in the position to easily access high-class information than the Defendant, and thus, it is difficult to understand that the Defendant’s assertion that Non-Indicted 17 believed that the content was true from Non-Indicted 17.

③ The Defendant asserts that the Defendant had made the instant statement from Nonindicted 17 as it is. However, not only at the time of the instant statement, but also at the time of the trial, the Defendant asserts that, without specifying whether the Defendant “a large amount of borrowed check deposited” was “a large amount of borrowed check deposited,” the Defendant is Nonindicted 3, 4, and the Defendant asserts that it was an account related to Nonindicted 7. In addition, the content of the instant statement made by the Defendant is very abstract and abstract to the effect that “a large amount of borrowed check was announced to another person, and a large amount of borrowed check was discovered.” Nevertheless, the Defendant did not ask Nonindicted 17 to “a large amount of borrowed check deposited in the KRW 100,00” after the instant statement was at issue, and the Defendant did not even mention whether it was true after this fact.

④ The Defendant, even though he was in a position to verify the truth through other channels, etc., even if he had been in a position to verify the truth from Nonindicted 17.

⑤ The Defendant asserted that Nonindicted 17’s place was a late-to-day hotel, and corrected that it was a hotel hall, and the Defendant also talked with Nonindicted 17 and talked with the first half of the conversation and divided several other stories. In light of the fact that the Defendant corrected the place where the Defendant first asserted, the Defendant’s talked with Nonindicted 17, and the former president’s talked with Nonindicted 17, which appears to have been very important part of the contents of the conversation. In light of the above, the possibility that the Defendant could not accurately memory the talks from Nonindicted 17.

D) After the instant statement, the Defendant, via Nonindicted 25, made a concrete statement on the account with Nonindicted 24’s former prosecutor’s office’s office. In other words, “1 billion won or more was deposited in the account in the three-party branch of Korea Bank Office in the name of two female administrative officers of the Blue House in the Blue House in 2004, and was withdrawn and used after the retirement of the former president around February 2008.” The prosecutor made a statement to the effect that he heard the above contents before the instant statement and made the instant statement. However, the Defendant’s statement to the effect that he did not have any consistency in the contents of the instant statement from the prosecutor’s office before and after the date of the closure of the argument at the trial of the lower court, and that Nonindicted 1 had no specific statement from the former prosecutor’s office before and after the prosecution’s oral statement to the same effect that Nonindicted 25 made it difficult for the Defendant to have presented the instant statement from the former prosecutor’s office.

E) In addition to Non-Indicted. 1’s previous report at the time of Non-Indicted. 1’s death, Non-Indicted. 1’s statement “a large amount of borrowed-name account with which a 100,000 foot check was deposited” and “special questioning statement” did not have been reported, and there was no fact that the Defendant confirmed the authenticity thereof.

5) Sub-committee

Therefore, this part of the defendant's assertion is without merit, since it can be sufficiently recognized that the defendant has damaged the reputation of the victims by openly pointing out false facts as stated in the judgment of the court below.

B. As to the assertion of unfair sentencing

The crime of this case was committed by the defendant working as the director of the Seoul Local Police Agency at the time, who made an official statement about 400 members of the police agency, containing false facts about the causes of suicide of the former president of non-indicted 1, thereby impairing the honor of the victims and their bereaved families.

Although the Defendant’s statement of this case was not immediately at issue, but it became a social controversy after the Defendant became a candidate for the National Police Agency, the Defendant, the Commissioner General of the Seoul National Police Agency, who deals with the contents of the instant statement, is bound to believe that the Defendant, who is the general public, has made such a statement with objective information and basis and caused suspicion as to the causes of the death of the former president of Non-Indicted 1.

In the event that the investigation was completed on May 23, 2009 due to the suicide of the former president of Nonindicted Party 1 on the part of Nonindicted Party 1 while the investigation was being conducted on the suspicion of bribery by the former president, the Defendant, who was able to have access to a sensitive information socially and politically as the Seoul National Police Agency, made the instant speech without confirming the authenticity thereof, thereby causing mental pain to the victims or their bereaved family members. Moreover, it was a direct opportunity for Nonindicted Party 1 to bring about the division of national debate between the people supporting and criticizeing Nonindicted Party 1.

In addition, the Defendant appeared to have shown the attitude of making the instant remarks with specific data and information after the instant remarks were at issue. The prosecution does not seem to have a serious reflection from the investigation stage to the trial, such as: (a) the Defendant made a contradictory assertion that, even though he/she made a false statement, he/she believed that the person who presented his/her statement as the grounds for his/her statement made a false statement while claiming its authenticity by specifying “the borrowed-name account” referred to in the instant remarks as the accounts of the executive officers in detail; and (b) reversed it after prosecution, he/she made a reply to avoid his/her responsibility.

The defendant's attitude is very heavy in that the defendant's position should be prudently speech and behavior as a senior public official who arranges the Seoul Local Police Agency and the Commissioner General of the National Police Agency.

In addition, the defendant asserts that he was legitimate until the trial of the case, and instead the defendant appealed to the victim or his bereaved family members, and did not directly go through the withdrawal of the complaint of this case, and the victim continuously wanted to punish the defendant up to the trial of the case.

In light of these circumstances, the judgment of the court below which sentenced the defendant to the punishment because the defendant cannot be exempted from strict punishment even though considering the circumstances favorable to the defendant as seen below is justifiable.

However, the defendant, as the head of the Seoul Provincial Police Agency, has tried to reform the personnel system of the police organization while serving as the police officer for 190 to 22 years from 2012, and to improve the police's integrity as a result of corruption, has contributed significantly to the development of the police by improving the human rights protection, promoting the eradication of old, old, and cruel acts, and trying to eradicate school violence, and making efforts to eradicate school violence, thereby contributing significantly to the development of the police, such as protecting human rights, promoting the eradication of cruel acts, eradicating school violence, and preventing school violence, that many people including police officers and model drivers want the front line of the defendant, and that there are circumstances favorable to the defendant, such as the investigation and completion of the investigation of the bribery case against the former president, and that the defendant has tried to improve the personnel system of the police organization while serving as the National Police Agency 16th National Police Agency, and that part of the defendant's argument that the court below sentenced the punishment against the defendant, as well as the circumstances favorable to the defendant, is justified.

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is the same as that stated in each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 307(2) of the Criminal Act (the point of defamation by publicly alleging false facts), Article 308 of the Criminal Act (the point of defamation of a deceased person), and choice of imprisonment with prison labor.

1. Aggravation for concurrent crimes;

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

Judges Jeon Soo-hun (Presiding Judge)

Note 1) Evidence No. 522

Note 2) Evidence Record No. 559

3) The Defendant stated that the phrase “the discovery before running the string is not “the discovery time,” but “the time at which Nonindicted Party 1 became aware,” and that he was aware of the discovery of the name account due to Nonindicted Party 1’s death (Evidence No. 563, 566 pages of the evidence record).

Note 4) Evidence No. 436

Note 5) Evidence No. 565 pages

Note 6) Evidence No. 568 pages

Note 7) Evidence No. 576 pages

Note 8) Evidence No. 945-946

9) The 486 pages of the trial records

Note 10) Trial Records of the third instance trial

Note 11) The fifth trial record

Note 12) Evidence No. 436 pages

Note 13) Evidence No. 576 pages

Note 14) The third trial records

Note 15) Evidence No. 567 pages

Note 16) Evidence No. 689, 691

Note 17) Evidence Record No. 712

Note 18) Trial Records No. 472-474

Note 19) Evidence Record No. 668

Note 20) Trial Records No. 467-468, 472

Note 21) Evidence No. 840

Note 22) Evidence Record No. 770

Note 23) Court records No. 456

Note 24) Evidence No. 876 pages

Note 25) Court records No. 454

Note 26) Trial Records No. 456-458

Note 27) Evidence Record No. 769

Note 28) Evidence Record No. 885

Note 29) Evidence No. 947-949, 955-956

30) The Defendant, at the time, testified that such facts had been taken before the instant speech by the prosecution, and then reversed the statement to the effect that such contents were contents after the instant speech.

Note 31) Evidence No. 571-572

Note 32) Evidence 8, 9, No. 233-235, 293 of the trial records

Note 33) Evidence Record No. 916

Note 34) Evidence No. 600 pages

Note 35) Evidence No. 598, 601-605 pages

Note 36) Evidence No. 467 pages

Note 37) Evidence No. 80

Note 38) Evidence No. 470 pages

Note 39) Evidence No. 109 pages

Note 40) Trial Records in the third instance of the trial

Note 41) Trial Records No. 949-950

Note 42) Evidence Record No. 479

Note 43) Evidence Record No. 441, 442, 573, 58, 943, 957