(a) The case holding that it constitutes the crime of defamation by publications and the crime of interference with business by inserting an advertisement, such as exaggeration, distortion, and inserting any contents which are not contained in the announcement by the Korea Consumer Protection Board;

B. The case of not guilty on the ground that there is no specific statement of facts in the facts charged

C. In the case of paragraph (1), the number of crimes in both crimes (=ordinary concurrence)

(a) The case holding that it constitutes the crime of defamation by publications and the crime of interference with business, where an advertisement, such as exaggeration, distortion, and inserting contents which are not contained in the announcement, constitutes the crime of defamation and interference with business by publication;

B. The facts charged that the Korea Consumer Protection Board posted false advertisements for the purpose of slandering the Korea Consumer Protection Board cannot be deemed to have known of specific facts, and thus, the decision of innocence is justifiable.

C. Each crime that damages the reputation of the Korea Consumer Protection Board and interferes with its business by publicly expressing and spreading false facts through publications 18 times with the aim of slandering the Korea Consumer Protection Board is related to the commercial competition agreement stipulated in Article 40 of the Criminal Act, which corresponds to two crimes.

(a) Articles 309(2) and 314(b) of the Criminal Act; Articles 37 and 40 of the same Act;

A. Supreme Court Decision 82Do714 delivered on June 14, 1983 (Gong1983,107) 89Do1744 delivered on November 14, 1989 (Gong190,72) 91Do1344 delivered on August 27, 1991 (Gong191,2465)

A

Defendant and Prosecutor

Attorney B

Chuncheon District Court Decision 91No193 delivered on October 1, 1992

The conviction part of the judgment of the court below shall be reversed, and the case concerning this part shall be remanded to the Chuncheon District Court Panel Division.

The remainder of the appeal by the prosecutor (including the acquittal part) is dismissed.

1. Judgment on the first ground for appeal by defense counsel

The fact-finding of the court below as to the point of view is justified in light of the relation between the evidence and the court below's reasoning. It cannot be deemed that there was an error of law that found the facts affecting the conclusion of the judgment by violating the rules of evidence, such as the theory of the court below, and if the facts are as determined by the court below, the Korea Consumer Protection Board collected the market milk including C milk and conducted a test for nutrition prices, etc. according to the methods of sterilization, etc., including C milk, through the press media, and announced the results of the analysis that the products of the test milk are generally excellent and there are little differences by the test items, but there is no big difference in nutrition, etc., as the result of the analysis that D, who is an employee of the Korea Consumer Protection Board, conducted a test with the dissatisfaction, and interpreted and used it as one's own situation, or that there was no error of law that the defendant arbitrarily announced the contents of the publication to the Korea Consumer Protection Board's employees with the inherent reason that it could interfere with the public health of the Korea Consumer Protection Board's own or other interested parties.

2. Prosecutor's ground of appeal No. 2

The court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that there is no specific statement of fact that the crime of defamation requires a statement of fact in order to establish the crime of defamation, and the alleged facts should be the body of the Gu. Of the facts charged in this case, the defendant posted false advertisements in Eth Seoul Newspapers and Fail Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy and Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy for the purpose of slandering the Korea Consumer Protection Board, and damaged the reputation of the Korea Consumer Protection Board through publications.

3. The defense counsel's ground of appeal No. 2 and the prosecutor's ground of appeal No. 1

The court below decided to impose a fine of KRW 10,00,00 on the defendant for concurrent crimes as provided for in Article 1 of the Criminal Act, after applying Articles 309(2) and (1) and 307(2) of the Criminal Act with respect to the crime of defamation by publication, etc. as provided for in Article 8 of the judgment below, to the extent that the amount of penalty for concurrent crimes as provided for in Articles 37, 38(1)2 and 50 of the Criminal Act is the most severe according to Articles 38(1)2 and 50 of the Criminal Act.

However, it is evident that the so-called defamation by publications, etc. which the court below found guilty falls under Article 309(2) of the Criminal Act. Since such provision only provides for a term of imprisonment of not more than seven years or a suspension of qualification for not more than ten years, it cannot be said that the punishment of the defendant has been imposed, and since it is obvious that such illegality has affected the conclusion of the judgment, there is a reason to point out this error.

4. Determination ex officio

The court below held that the crime of defamation by publications of No. 8 and the crime of interference with business of No. 9 of the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act.

However, each of the above facts constituting the crime has damaged the reputation of the Korea Consumer Protection Board and interfered with its business by publicly expressing and spreading false facts 18 times through publications for the purpose of slandering the Korea Consumer Protection Board. Therefore, it is reasonable to view that each of the above crimes constitutes two crimes and has a relation of ordinary competition as stipulated in Article 40 of the Criminal Act. Accordingly, the judgment of the court below did not err in the misapprehension and application of the law.

5. However, the court below held that the crimes listed in subparagraphs 1 through 9 of the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment. Thus, since all convictions of the court below are reversed, the part of the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination on this part, while the prosecutor's appeal as to the acquittal portion of the judgment of the court below is dismissed, and

Justices Yoon-young (Presiding Justice)