Defendant 1 and one other

Defendants

air route germs

Attorneys Kim Young-soo et al.

Busan District Court Decision 2009 High Court Decision 1696 Decided November 26, 2009

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by a fine of 200,000 won.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

To order the provisional payment of an amount equivalent to the above fine against Defendant 1.

Of the facts charged against Defendant 1, defamation is acquitted.

Defendant 2’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

① Defendant 1’s receipt of Nonindicted 2’s criminal records from Defendant 2 around November 4, 2008. However, Defendant 2 was released from her life-free on the dry cycle, but was immediately incinerated on that day. As such, it cannot be deemed that Defendant 1 obtained criminal records for other purposes. ② Defendant 1, as well as Nonindicted 2’s criminal records, displayed Nonindicted 2’s criminal records to Defendant 2, and did not indicate that “a person was in bad faith” was “a person in bad faith.” However, the lower court erred by misapprehending the facts, thereby convicting Defendant 2 of all the charges of this case.

(2) Unreasonable sentencing

Defendant 1’s death and death with her husband, but there is a long-term contact with her mother, which is a senior citizen living alone, and 400,000 won per month designated as a person eligible for livelihood benefits and discharged from the State is the only livelihood of Defendant 1, and it is not urgent to prepare a fine due to a roat operation, etc., the sentence of the lower court (fine 500,000) is too unreasonable.

B. Defendant 2

Although Defendant 2 was assaulted by Nonindicted 2 and her children, Defendant 2 was not aware of the fact that the remaining crime was committed by Defendant 2 was committed by the perpetrator, and Defendant 2 is deemed to be the perpetrator, taking into account the fact that all of the instant crimes were led to confession and in depth, health conditions, etc., the sentence of the lower court (one million won of fine) is too unreasonable.

2. Determination

A. Defendant 1

(1) Ex officio determination

First, prior to the judgment on the grounds of appeal by Defendant 1, it is considered ex officio.

With respect to defamation among the facts charged in this case against Defendant 1, the prosecutor filed an application for changes in the indictment with respect to "B around August 2008" as "B around 2008," and "I show the criminal record records of the acquired complainants to residents," and "I show the criminal record records of the same apartment in the same apartment as "I show the records of the criminal record of the acquired complainants to Non-Indicted 3 who reside in the same apartment," and this court permitted this and changed the subject of the trial. Therefore, the judgment of the court below is no longer maintained.

However, since the defendant 1's argument of mistake of facts is still subject to the judgment of this court, it will be examined below.

(2) As to the assertion of mistake of fact

(A) Violation of the Act on the Lapse of Punishment

Comprehensively taking account of the evidence duly admitted and examined by the court below, it can be recognized that Defendant 1 acquired Nonindicted 2’s criminal records from Defendant 2 for the purpose of using them for other purposes in violation of the provisions as stated in the facts constituting a crime in the judgment below.

(B) Defamation point

1) Summary of this part of the facts charged

Defendant 1 presented the victim’s criminal record record, which was acquired from Defendant 2 residing in the same apartment, to Nonindicted 3 who resides in the same apartment, on the ground that it would be difficult for Defendant 1 to interfere with his own work in his own dwelling area, 110 dong 110 dong 1109 Dong-dong 11109, and Defendant 1’s reputation was damaged by publicly alleging the fact that “the victim was bad,” and by publicly alleging the fact that “the victim was bad.”

2) The judgment of this Court

As to this part of the facts charged, Defendant 1 consistently revealed that Nonindicted 2 had obtained such criminal records from Nonindicted 3, but denied the fact that “the former is bad,” and thus, according to each evidence of the lower court and the political party, it is recognized that Defendant 1 had shown Nonindicted 2’s criminal records as stated in this part of the facts charged, and that “the former is bad,” but it is difficult to recognize that Defendant 2 had no other criminal records from around April 2007, which were known by the aforementioned evidence and the record, and that Nonindicted 3 had no possibility of being exposed to Nonindicted 1’s criminal records, such as Nonindicted 2’s criminal records, and that Nonindicted 2 had no other criminal records from Nonindicted 3’s criminal records, and that Defendant 1 had no other criminal records from Nonindicted 2’s criminal records, such as Nonindicted 3’s criminal records, and that Defendant 2 had no other criminal records from the lower court’s criminal records that he had no possibility of being exposed to Nonindicted 1’s criminal records. In such a situation, Defendant 1 had no other criminal records.

Therefore, although this part of the facts charged constitutes a case where there is no proof of crime and thus, the court below found Defendant 1 guilty of the facts charged. Thus, Defendant 1's above assertion has merit.

B. Defendant 2

Taking into account all the circumstances alleged by Defendant 2, considering all of the following factors: (a) the instant crime was committed in a public manner by acquiring another person’s previous conviction and publicly alleging such offense; and (b) the Defendant’s age, character and conduct, environment, health conditions, and circumstances before and after the instant crime; and (c) the sentencing conditions specified in Article 51 of the Criminal Act as stated in the records, such as the Defendant’s age, character and conduct, environment, health conditions, and the circumstances before and after the instant crime, it

3. Conclusion

Therefore, since the part of the judgment of the court below as to Defendant 1 among the judgment of the court below on the ground of ex officio reversal, the judgment of the court below is reversed under Article 364(2) of the Criminal Procedure Act without examining the argument of unfair sentencing, and the appeal by Defendant 2 is without merit, and the appeal by Defendant 2 is dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition by the court below (However, since the "Act on the Protection of Personal Information of Public Institutions" in the application of the law is obvious that it is a clerical error in the "former Act on the Protection of Personal Information of Public Institutions (amended by Act No. 848 of May 17, 207)", it is obvious that the "Act on the Protection of Personal Information of Public

Defendant 1, as well as the victim non-indicted 2, is a neighboring party who resides in the above ○○ apartment 110-dong, and on November 4, 2008, the person was not allowed to obtain criminal records or investigation records records for the purpose of using them for other purposes in violation of the provisions of the provisions of Article 2, while the person was not allowed to obtain criminal records or investigation records records in the place of his residence of the defendant 2, ○○ apartment 110-dong, Busan Northern-dong, 110-dong, 702.

1. The defendant 1's partial statement

1. Defendant 2’s legal statement;

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

Articles 10(2) and 6(3) (Selection of Fines) of the former Act on the Lapse of Punishment, etc. (Amended by Act No. 10211, Mar. 31, 2010)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In addition to Defendant 1’s initial crime, the sentence as ordered shall be determined in consideration of various circumstances that are conditions for sentencing, such as the age, character and conduct, the environment, the background of the instant crime and the conditions before and after the crime.

Of the facts charged in the instant case, the summary of Defendant 1’s defamation is as shown in Article 2-2(a)(2)(b)(1) of the Criminal Procedure Act. This constitutes a case where there is no evidence of a crime as seen in Article 2-2(a)(2)(b), and thus, a judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act

Judges Park Young-young (Presiding Judge) (Presiding Justice)