2017 Highest 38 Defamation

1. A;

2. B

Park Jong-young (Public Prosecution) and Lee Jae-in (Public Trial)

Attorney C (for the defendant)

August 25, 2017

Defendant A shall be punished by imprisonment with prison labor for six months and by imprisonment for four months.

However, the execution of each of the above punishments shall be suspended for the defendant A for two years from the date this judgment becomes final and conclusive, and for the defendant B for one year from the date this judgment becomes final and conclusive.

To order the Defendants to provide community service for 80 hours each time.

Criminal facts

1. Defendant A

The Defendant: (a) did not have conducted a genetic test in order to identify who is the victim’s child born in the OO military culture and tour guide; (b) on May 2016, the Defendant: (c) provided that, at the culture and tour hall office located in the OOOE, the Defendant: (a) stated that “D had conducted a genetic test to reveal the child’s missing; (d) caused the victim’s reputation by openly pointing out false facts; (b) around July 2016, the Defendant damaged the victim’s reputation by openly pointing out false facts; and (c) on the part of B driving an OOO bus to the OOO located in the OOOG G G from the OOF to the OOOOO; and (d) provided that “D was performing a genetic test to verify whether a child was missing in the course of riding in a cigarette; and (d) made a false statement with the victim’s reputation by publicly pointing out false facts.”

2. The suspect B;

At the end of July 2016, the Defendant damaged the victim’s reputation by publicly pointing out false facts by stating that “A” means “A” outside of the instant case where D is on the cultural and tourism road of OO-gun, without having performed a gene test in order to clarify the omission of children in the O-gun G.”

Summary of Evidence

1. Defendants’ partial statement

1. Witness D, H, I, and J

1. Each legal statement of D. D. 1. Written Confirmation of Facts by OO, OO, and OO, 1. Medical certificate, 1. Marriage relation Certificate, 1. Recording Record (Normas H, I, OO, and J)

Application of Statutes

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

A. Defendant A

Article 307(2)(b) of the Criminal Act: Defendant B: Article 307(2)1 of the Criminal Act provides that Defendant A shall be subject to concurrent crimes under the former part of Article 37, Article 38(1)2, and Article 50(1) of the Criminal Act; Article 62(1) of the Criminal Act; Article 62(1)1 of the Social Service Order Defendant: Determination on the assertion of the Defendant of community service order: Article 62-2 of the Criminal Act; Article 59 of the Probation, etc. Act; Article 59 of the Defendant and his defense counsel;

2. Determination

In light of the following circumstances admitted by the evidence as seen earlier, the Defendants and the defense counsel’s above assertion is rejected, as there is no reasonable doubt that the Defendants knew that the phrase “a genetic test was conducted in order to reveal the victim D’s friendship,” as stated in the judgment of the Defendants, was false or doluence was recognized at least.

A. First of all, we examine whether the phrase “the victim has conducted a genetic test to reveal his or her friendship” in the holding is false or not.

이에 관하여 피고인들은 피해자가 “자신은 재혼한 부부인데, 지금의 남편이 무정자증이어서 전부인과 아이가 생기지 않았다. 재혼 후 자신이 임신하자 시댁에서 자신을 부정한 여자로 의심하여 임신한 아이에 대하여 유전자검사를 하였다”는 말을OOOO, K등 다른 OO군 관광해설사들에게 직접하였다고 주장하고, OOO은 이 법정에서 “2008년경 4, 5기 관광해설사들이 여러 명 있는 자리에서 피해자가 위와 같은 말을직접 말하였다”고 진술하고 있으며, K는 이 법정에서 “2016. 8. 27.부터 같은 해 9. 6.까지 있었던 OO군 OOO 축제기간 중에 피해자와 한번 같이 근무한 적이 있었는데, 그때 피해자가 위와 같은 말을 하였다”고 진술하고 있다.

However, the following circumstances are consistent with the victim's statement from the investigative agency to the date of this court that "IO was not able to see that IO or IO was the victim's statements." The victim stated that IO was not able to hear the above statements from the victim or the victim's lawsuit around 2008. ③ The victim's south was not the victim's free will, ④ there was no other evidence that IO was subject to genetic testing at the time of the victim's pregnancy, ⑤ there was no other relation between IO and IO's oral statement and IO's oral statement that IO was not the victim's first time, and there was no other relation between IO and IO's oral statement and IO's oral statement that IO's oral statement that IO was not the victim's first time, and there was no other relation between IO's oral statement and IO's oral statement that IO was the victim's oral statement that IO was not the victim's first time after IO's oral statement.

B. We examine whether the Defendants were aware of the falsity or not, i.e., whether there was an intentional act of defamation of false facts.

Since the intentional act of a crime includes not only a conclusive intentional act but also dolusent intentional act, which is the intention to recognize the occurrence of a result, the crime of defamation by a false statement is also established by dolusent intentional act (see, e.g., Supreme Court Decision 2013Do12430, Mar. 13, 2014).

In other words, the following circumstances are as follows: (a) The false fact that the Defendants stated “the husband of the victim was fluorous so that the victim was able to clarify her friendship, and thus the victim was fluoral, and thus, it is difficult to find it necessary for the Defendants to spread it to the other party; (b) the Defendants were working together with the victim and knew of the victim of a fluoral relationship; and (c) the Defendants did not make efforts to confirm the authenticity of the above horses even though there was a method of verifying the authenticity of the horses; and (c) the Defendants did not simply deliver the inquires, but rather confirmed and disseminated the above horses as a fact, it is reasonable to view that the Defendants were aware that the horses as stated in the judgment were false, or at least did not recognize it at least at least.

Reasons for sentencing

1. Defendant A

There are favorable circumstances that the defendant is the primary offender.

In light of the frequency of crimes and the relationship between the victim and the victim, there is a relatively active fact that the defendant committed a relatively active crime, and the defendant did not take any particular measure for the recovery of damage.

The above circumstances and other circumstances, including the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., shall be determined in the same manner as the orders, comprehensively taking into account the various sentencing conditions in Article 51 of the Criminal Act.

2. Defendant B

The favorable circumstances include that the defendant has no record of criminal punishment, as well as the defendant has been sentenced to a fine on one occasion for a double crime.

There is a fact that the defendant did not take any particular measure for the recovery of damage due to unfavorable circumstances.

The above circumstances and other circumstances, including the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., shall be determined in the same manner as the orders, comprehensively taking into account the various sentencing conditions in Article 51 of the Criminal Act.

Judges Jeong-ho