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(영문) 인천지방법원 2015.09.04 2015노127
무고등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, for a period of two years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. The Defendant, like the facts charged in the instant case, did not have any false fact-finding that D’s father sent a letter containing false facts on 67 occasions by accessing the Nitart’s bulletin board, or that D’s father sent a false fact to the Internet newspaper, etc.

B. As to the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation), among the facts charged in the instant case, part of the NAE bulletin is merely a statement of fact or a statement of opinion, and thus, the Defendant cannot be deemed to have indicated false facts.

C. The lower court’s sentence of unreasonable sentencing (one year of imprisonment, two years of suspended execution, and 120 hours of community service) is too unreasonable.

2. Ex officio determination: (a) where several acts falling under the name of the same crime, or several acts falling under the name of the same crime or continuous acts are continuously conducted for a certain period under the single and continuous criminal intent and where the legal benefits from such acts are the same, each of these acts shall be punished as a single comprehensive crime; (b) where the identity and continuity of a crime is not recognized or the method of committing a crime is not the same, each of the crimes constitutes substantive concurrent crimes (Supreme Court Decision 2005Do4051 Decided September 30, 2005). In light of the facts charged in the instant case, each act of violating the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information (Defamation) among the facts charged in the instant case constitutes a single and continuous crime; and (c) continuously or continuously conducted for a certain period under the single and continuous criminal intent or for a certain period; and (d) where the damage legal interests are the same, the court below erred in the misapprehension of legal principles as to the number of concurrent crimes in the judgment of the Defendant 1G.

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