[1] In a case where the facts charged were changed to an offense subject to victim's complaint at the appellate court, whether the cancellation of complaint at the appellate court becomes effective as cancellation of complaint against an offense subject to victim's complaint (negative

[2] The meaning and method of determining "the purpose of improper use" under Article 61 (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Article 232 of the Criminal Procedure Act / [2] Article 61 (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Supreme Court en banc Decision 96Do1922 delivered on April 15, 199 (Gong1999Sang, 970) / [2] Supreme Court Decision 2000Do329 delivered on August 23, 2002 (Gong2002Ha, 2248)

Defendant

Defendant

Gwangju District Court Decision 2006No998 Decided December 14, 2006

The appeal is dismissed.

We examine the grounds of appeal.

1. In a case that cannot be prosecuted against the clearly expressed will of the victim, withdrawal of the wishing to punish may be made before the judgment of the court of first instance is rendered (Article 232(1) and (3) of the Criminal Procedure Act). According to the records, since the victims submitted a complaint withdrawal statement and a written agreement containing the withdrawal of wishing to punish the Defendant for a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. after the judgment of the court of first instance is rendered, the victim’s withdrawal of wishing to punish is invalid.

In addition, even where the facts charged were changed to an offense subject to victim's complaint at the appellate court, the appellate court cannot be deemed to be the first instance court. Thus, if the complainant at the appellate court had cancelled the complaint, it is not effective as the cancellation of the complaint against the offense subject to victim's complaint (see Supreme Court en banc Decision 96Do1922, Apr. 15, 199). According to the records, the prosecutor indicted the victim non-indicted as a crime committed on May 7, 2005 and May 21, 2005 by violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., but revised the indictment as an offense subject to victim's complaint at the appellate court. Since the victim non-indicted revoked the complaint after the judgment of the first instance court was rendered, the revocation of the complaint also has no effect in light of the aforementioned legal principles.

Therefore, the court below's rejection of the victims' wish to punish victims and the cancellation of complaint is just, and there is no error in the misapprehension of legal principles as to withdrawal of wish to punish victims and the cancellation of complaint.

2. Article 61(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. provides that the issue of whether a person aims to defame a person, which requires an intention or purpose of a harm ought to be determined by comparing and considering the following: (a) the content and nature of the relevant statement; (b) the scope of the counter-party to whom the relevant fact was published; and (c) the degree of infringement of reputation that may be damaged or damaged by the expression (see Supreme Court Decision 2000Do329, Aug. 23, 2002, etc.).

The court below's decision is just in light of the records that the contents of the article 1 (a) and (b) of the facts charged except for the remainder of the facts charged are false and the defendant's "incompetence" is "incompetence" in full view of the words used in the article 1 (a) and (b) of the facts charged in this case. There is no violation of the rules of evidence

3. Examining the reasoning of the judgment below in light of the records, the court below is just in holding that even if the name of the victim non-indicted is not specified in detail, it can be easily known that the "non-indicted loss" is the victim's name. There is no error in the misapprehension of legal principles as to the specification of the victim, as otherwise alleged in the ground of appeal in the judgment below. The argument in the grounds of appeal is without merit.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)