2017No1508 Defluence

A

Defendant

institution of a public trial, institution of a public trial, or institution of a public trial.

Law Firm K LLC, Attorneys L, M

Seoul Central District Court Decision 2016Gohap3766 Decided April 21, 2017

January 25, 2018

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Considering the following circumstances, the lower court erred by misapprehending the facts charged or by misapprehending the legal doctrine.

1) There is no fact that the Defendant expressed the victim as stated in the facts charged by the Defendant at the large interest of “the full plastic garbage four”. The Defendant requested the extension of the period of use by telephone due to a foreign business trip from E (hereinafter referred to as “E”) after the victim’s membership was cut off, and then requested the employee to confirm it, and submitted the Defendant’s entry and departure details and passport. However, the victim first expressed violent and insulting words to the Defendant, i.e., “the Defendant was engaged in the same veterinary method as the Domine fe and the fraud change.” The Defendant only called “the victim to do so” as “the victim was “the victim to do so.”

2) The victim’s speech does not meet the “public performance” requirement for the crime of insult. At the time, the place where the Defendant and the victim divided the conversations between the Defendant and the victim is cut off with the E Information Society (spathy). Since the music in E is big, other members were unable to hear the statement made by the Defendant. While the victim stated that the Defendant was the horse of another employee at the time of the instant case, G, F and several members, the witness G and F stated that the “waste” was sound, and there was no testimony from other members.

3) Even if the facts charged against the Defendant are true, in light of the background leading up to the Defendant’s resistance against the victim’s inappropriate response, and the degree of expression, etc., the Defendant’s act is dismissed as a legitimate act.

B. Unreasonable sentencing

The punishment (fine 500,000) imposed on the defendant by the court below is too unreasonable.

2. Determination

A. Summary of the facts charged in this case

On April 28, 2016, at around 17:00 on April 28, 2016, the Defendant sexually insultingd the victim as “E” in the second underground floor of the Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government Cbuilding, on the ground that the victim did not receive the Defendant’s request for telephone recess, the Defendant made a public insult of the victim by expressing the victim as “the full waste dump per party” to the victim, among customers in the country, F, G, and nameless.

B. The judgment of the court below

The defendant and defense counsel asserted in the court below that ① the defendant merely stated that the victim "the victim was "the same sound as such" and did not directly referred to as garbage against the victim, ② the defendant's speech made by the victim is merely an emotional criticism of the victim's horse in the process of dispute, and it is difficult to regard the victim as an intentional expression for the purpose of lowering the victim or impairing the social evaluation of the victim, and ③ social rules do not violate."

Based on the witness D, G, and F’s respective legal statements, the lower court found the Defendant guilty of having committed an insulting speech against the victim, and judged that the Defendant had the intent to insult the victim. Furthermore, considering the circumstances and circumstances at the time of the instant case, the lower court found the Defendant guilty on the ground that the Defendant’s act was in violation of social norms.

C. Judgment of the appellate court

1) Whether the Defendant was a victim of insulting remarks as stated in the facts charged

On April 28, 2016, the injured party consistently from the investigative agency to the original trial court, and explained that the period of use of membership from E to E is terminated, and that the period of use of membership should not expire three months after receiving a request from the accused to extend the period of use of membership, and that the defendant's failure should not expire (No. 41 of the trial record, No. 10 of the evidence record).

In light of the fact that the defendant applied for a recess by telephone and approved by female employees in the investigation agency and the court below at the time E information center G, F, who had been working in the E information center, was well processed, and the victim stated that the victim made a statement to the victim that he was a garbage (Article 47 through 49, 53, 54 of the trial record, No. 6, No. 7 of the evidence record), and that the victim heard such insulting remarks from the defendant and reported 112 reports, the victim's statement is credibility.

Therefore, it is recognized that the fact that the defendant stated "the full waste dyp of per party" to the victim is the victim.

2) Whether performance is recognized

A) The so-called “patent” under Article 311 of the Criminal Act refers to a situation in which many or unspecified persons may be inquired (see, e.g., Supreme Court Decision 83Do3292, Feb. 28, 1984).

B) Whether the Defendant made an insulting speech to the victim among customers in the name of the victim

(1) The victim stated in the investigative agency that the defendant had been satisfed with the phrase “the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person who will be employed by the person,

(2) At an investigative agency, the Defendant stated that there was no mind because there were many males who are around the Defendant’s interchanges with male who are likely to be accompanied by the Defendant, and that there was a fact that he requested to assist the members later (Evidence No. 25, 26 pages).

(3) According to the above statements by the victim and the defendant, there is a high probability that the victim might have been E members around the victim's insulting speech. However, in light of the fact that the victim's failure to provide his/her member's telephone number did not proceed with an investigation (Evidence No. 30, 31 pages), etc., it cannot be deemed that there was no reasonable doubt to prove that the victim's insulting speech by the victim led to the situation where the victim can be perceived to many and unspecified persons in terms of the content of the insulting speech, the process of the statement, and the situation before and after the statement by the victim when the victim insultings the defendant.

(4) In addition, the victim, F, and G stated that the victim, F, and G did not have the structure of E in the original judgment, and there is a high partitions between E’s information room and the sports space, and even if there was a partitions between the information room seat, sound is not interrupted. Although music was organized in E, it was not so much significant that the sound of conversation was not inside (Article 42, 48, 54 of the trial record). However, in addition to the above circumstances, E employee G at the present site stated in the original judgment to the effect that if not concentrating due to the existence of music and partitions at the time of the trial court, the contents of conversation between the Defendant and the victim did not well appear (Article 49 of the trial record), it cannot be seen that the Defendant’s insulting speech was merely a check or the statement was not sufficient to prove that there was no other victim’s insult to the members of E, unless there was any investigation into the members of E.

C) Whether the victim’s horses are likely to be disseminated from F, G to an unspecified or many unspecified persons

As seen earlier, F, and G in E Information Line showed an insulting speech made by the Defendant against the victim. However, considering the fact that F and G were employed by the Defendant and performed the work from E to E, it is difficult to readily conclude that F and G are likely to spread the above insulting speech to an unspecified or many unspecified persons.

D) Therefore, the facts charged in the instant case should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because the requirements for performance are not met and there is no proof of criminal facts. The lower court erred by misapprehending the legal principles on the facts differently.

3. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following is ruled again.

【Discretionary Judgment】

The summary of the facts charged in the instant case is as indicated in Article 2(a). This constitutes a case where there is no proof of a crime for the same reason as stated in Article 2(c). Accordingly, a judgment of innocence is rendered by the latter part of Article 325 of the Criminal Procedure Act, and the Defendant cannot obtain consent to the public notice of the judgment of innocence due to his/her failure to appear on the sentencing date, and thus, a public notice of the judgment of innocence pursuant to

Judges Kim Jong-chul

Judges Park Jong-ho

Judges Lee Jae-in