(영문) 전주지방법원 2018.1.11. 선고 2017노202 판결

On July 7, 2014, the victim filed a complaint against the Defendant on March 20, 2015, despite having been aware of the fact that the Defendant made an insulting statement with respect to the victim as stated in the facts charged, on or around July 7, 2014. Therefore, since the victim’s complaint was filed with an excessive time limit, the lower court should have dismissed the instant indictment. However, the lower court convicted the Defendant on the premise that the instant complaint was lawful by taking into account evidence such as C and F’s confirmation after the witness’s testimony, etc.

2. Determination

A. Summary of the facts charged

On July 7, 2014, the Defendant publicly insultingd the victim by phone to C, a game machine production company run by the victim D, which is employed by the victim D, as an employee in the company E, by saying, “D is an infinite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite.

B. The judgment of the court below

According to the letter of confirmation of facts by F and C, the lower court did not dismiss the instant public prosecution and found the Defendant guilty on the ground that it is difficult to deem that C knew of the victim of the horses, such as the written facts charged, around September 2014, and the complaint was filed on March 20, 2015, before six months have elapsed since it was filed on March 20, 2015.

C. Judgment of the court below

The facts charged of this case are crimes falling under Article 311 of the Criminal Act, which fall under Article 312 (1) of the Criminal Act and can be prosecuted only upon the complaint of the victim under Article 312 (1) of the Criminal Act. Article 230 (1) of the Criminal Procedure Act provides that a complaint shall not be filed after the lapse of six months from

In full view of the following circumstances acknowledged by the records of this case, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the victim was a lawful complaint before the expiration of the period for filing a complaint. Therefore, there is no other evidence to acknowledge this. Therefore, the court below's judgment of conviction is erroneous in misunderstanding of facts or misunderstanding of legal principles as to the defendant's assertion, since it should be dismissed pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act.

1) On August 30, 2016, at the court of the court below, the witness C made a statement to the effect that "at the time when the victim came to know of the fact as stated in the facts charged, the victim made his speech to C as stated in the facts charged," "at the time of the recording, he spreaded to the public room of his staff. The same shall be the same (48 pages)", "after that he came to know," "after that he took a little answer to this case, the D Auditor or F Representative asked him to ask him that he was her, and therefore, he told him that he had this content, and therefore, he made a statement to the effect that "(50 pages of the public trial record)" was followed by telephone communications and a day.

2) On May 3, 2014, C and F submitted a written confirmation of facts to the lower court on November 28, 2016. Each of the aforementioned written confirmation of facts is that “A” sent the insulting speech made to the victim to G by the witness G of the lower court on or around May 3, 2014, G again notified C of the contact with respect to the said speech, and that “C knew of the defect in contact with the said speech to F” on or around September 7, 2014, there is no direct relation with the facts charged in the instant case that the Defendant directly made an insulting speech to C on July 7, 2014 (the facts charged that the Defendant made a speech to insult the victim by the Defendant was revoked on the sixth trial of the lower court).

3) At the court of the first instance on October 30, 2017, C took part in a question between the Defendant and his employees on a day after a telephone conversation with the Defendant. The same is as follows: (a) at the time, C took part in a speech to D; (b) at the same time, he reported the situation where he had not been aware of his accurately finites; (c) “I am dices”, and “I am finites these contents. At the time, at the same time, I did not think that there was a little finite. At all times, I thought that I would not have been dsoned (C-related record page 6); and (c) given that there was a finite, I made a statement to the effect that I made a statement to the effect that he would have been dnicked and dsoned by having given finite, and that he made a statement to the effect that he made a statement to the effect that he would have given his finite.

C The statement was made by the trial court to the effect that D did not know the specific contents of the written claim by the end of September, but it is nothing more than the conjection. D At least, D was aware of the contents of the statement made by the Defendant at the time immediately after the Defendant’s speech as stated in the facts charged, and confirmed that C was asked for a self-refluence at the beginning of July 2014. It is reasonable to deem that the Defendant’s horse was a crime of insult around that time.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows

[Grounds for multi-use Judgment]

1. Summary of the facts charged

The summary of the facts charged of this case is as stated in paragraph (2) of Article 2.

2. Determination

As seen in Paragraph 2-C, the victim filed the instant complaint after the lapse of the period for filing the complaint. Since the procedure for filing the prosecution is invalid in violation of the provisions of law, it is so decided as per Disposition by the assent of all participating Justices on the bench.