[2] The elements and criteria for determining the crime of defamation of false representation / The person who bears the burden of proving the elements of defamation of false representation (=the prosecutor) and the degree of proof

1. As to the part of injury

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. As to defamation part

A. In a case where an act that defames a person by openly pointing out a fact solely pertains to public interest, it shall not be punished pursuant to Article 310 of the Criminal Act. Here, the term “material fact” means a fact that is consistent with objective facts in light of the overall purport of the content thereof, and even if there is a little difference from truth or somewhat exaggerated expression. The term “when it comes to public interest” means an objective fact, and an offender is related to public interest, and the fact should also be expressed subjectively for public interest. Not only includes the fact that is widely related to the public interest of the State, society, and other general public, but also the interest and interest of a specific social group or its entire members. Whether an alleged fact relates to public interest should be determined by comparing the content and nature of the relevant alleged fact, the scope of the other party against whom the publication of the relevant fact was made, the degree of harm to reputation or harm caused by such expression, etc. In addition, if there is no other motive or intent for application of the Criminal Act to 1981, 2001.

Meanwhile, in order to establish the crime of defamation by publicly alleging false facts, the Defendant should publicly indicate such facts, and should have recognized such facts as false. In the process of determining whether the publicly alleged facts are false, in a case where the material part of the publicly alleged facts is consistent with objective facts in light of the overall purport of the facts in the process of determining whether the publicly alleged facts are false, it does not constitute false facts (see Supreme Court Decision 99Do4757, Feb. 25, 2000, etc.). Furthermore, in a criminal trial, the facts constituting the elements of the crime charged in a criminal trial constitute the prosecutor’s burden of proof, regardless of whether the facts are subjective or objective requirements, and thus, in a case prosecuted for the crime of defamation by publicly alleging false facts, the fact that the publicly alleged facts are inconsistent with objective truth, and the Defendant must prove all of such facts by recognizing that the facts were false. However, if the prosecutor determined whether the alleged facts were false or not, then the prosecutor must prove the existence of a specific period of 120 years as well as 100 specific facts at the place.

B. The judgment of the court below

1) Summary of the facts charged

Of the facts charged against the Defendant, the summary of the part concerning defamation is as follows. The victim Nonindicted Party 1, who was the promoters of Nonindicted Cooperative 2 (hereinafter “the instant cooperative”), was embezzled 1.49 billion won in total over 35 times from July 7, 2016 to November 30, 2016 and was sentenced to 2.3 years from the former District Court for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (hereinafter “the Specific Economic Crimes Act”), and 160 hours from the community service order. The Defendant, as the promoters of the instant cooperative, embezzled Nonindicted Party 2’s funds of KRW 2.0 billion from July 7, 2016 to November 30, 2016 to 35, thereby damaging the victim’s reputation by publicly alleging that Nonindicted Party 1 was an honorary member of the instant cooperative (hereinafter “the victim’s reputation” of the instant case (hereinafter “the instant case”) by publicly alleging Nonindicted Party 3’s 60 hours of the judgment.

2) Summary of the judgment

A) The part on defamation against the victim Nonindicted 1

For the following reasons, the lower court upheld the first instance judgment convicting the Defendant of this part of the facts charged, rejecting the allegation in the grounds of appeal that the illegality of the Defendant’s act is excluded pursuant to Article 310 of the Criminal Act. ① In order to slander Nonindicted 3, a representative of the instant association, who was unaware of the victim Nonindicted 1, the Defendant distributed a written judgment of embezzlement case when the victim Nonindicted 1 conspiredd with Nonindicted 3 to embezzled the money of the instant association in collusion with Nonindicted 3. ② The written judgment of embezzlement case contains not only the criminal facts of the victim Nonindicted 1, but also personal information, such as personal information, and the expression “humping” is inconsistent with the contents of the written judgment of the embezzlement case where the amount of damage was returned. ③ The victim Nonindicted 1 became known to the majority of the members who were unaware of due to the Defendant’s act.

B) The part on defamation against the victim Nonindicted 3

For the following reasons, the lower court upheld the first instance judgment convicting the Defendant of this part of the facts charged on the premise that the alleged facts were false and the alleged facts were false. ① In the judgment of embezzlement, Nonindicted Party 1 alone stated that Nonindicted Party 1 embezzled the money owned by the instant association, and the victim Nonindicted Party 3 was subject to a disposition of suspicion as to the charge of occupational embezzlement with Nonindicted Party 1 in the relevant investigation. ② The Defendant took advantage of the victim Nonindicted Party 3’s complaint against the operation of the cooperative, without sufficiently ascertaining whether the victim Nonindicted Party 3 was actually involved in the embezzlement of Nonindicted Party 1.

C. Judgment of the Supreme Court

The above determination by the lower court is difficult to accept for the following reasons.

1) Facts of recognition

According to the evidence duly adopted by the lower court and the first instance court, the following facts are revealed.

A) On June 1, 2016, Non-Indicted 3 was appointed as the representative director of Non-Indicted 4 Limited Liability Company (hereinafter “Non-Indicted 4 Company”) who operated the taxi passenger transport business.

B) On June 8, 2016, the victims, Nonindicted 5, Nonindicted 6, and Nonindicted 7 prepared the articles of association of the instant association as promoters of the instant association (hereinafter “instant articles of association”). After opening an inaugural general meeting and approving the said articles of association, Nonindicted 3 was decided to appoint the victims as president, Nonindicted 5, Nonindicted 6 as directors, and Nonindicted 7 as auditors. The victims Nonindicted 3 reported the establishment of the instant association to the Governor of Jeollabuk-do branch on June 16, 2016, and completed the establishment registration of the association on June 30, 2016.

C) Around July 7, 2016, between Nonindicted Company 4 and the instant association and Nonindicted Company 4 entered into an agreement on the transfer and acquisition of assets (hereinafter “instant agreement on the transfer and acquisition of assets”) with the effect that Nonindicted Company 4 would transfer assets, such as a license (50 vehicles: omitted) for passenger transport business (cab number: 50 vehicles: omitted) to the instant association at KRW 1.40 billion.

D) On July 7, 2016, the instant association borrowed KRW 2 billion at the interest rate of 20 billion per annum (27.9% per annum) from Nonindicted Co. 8 (27.9% per annum), and received the repayment period as of November 7, 2016 (hereinafter “instant loan”), and Nonindicted 3 guaranteed the instant association’s above loan obligation. The victim Nonindicted 3 transferred the total amount of KRW 2 billion of the instant loan to the account under the name of Nonindicted Co. 4 without the resolution of the general assembly or the board of directors on the same day, and had the victim Nonindicted 1 manage the said account as agreed in advance with Nonindicted Co. 1. The victim Nonindicted 1 began to use the said account for personal purposes from around that day.

E) After that, there was a question that some of the funds of the instant association were used for the purpose other than the purpose of operating the association. Around November 2016, Nonindicted 9, Nonindicted 10, and Nonindicted 11 filed a complaint with the previous district public prosecutor’s office against the charge that “the victims and Nonindicted 13 conspired with the victims and Nonindicted 13 to embezzled an amount equivalent to KRW 200 million out of the assets of the instant association.”

F) In the initial investigation, the victim Nonindicted 1 stated to the effect that “the funds for acquiring a taxi company additionally need to be paid to the victim Nonindicted 3 after using the instant loan and subsequently used the instant loan.” The victim Nonindicted 3 also stated to the effect that “the victim Nonindicted 1 was able to establish the instant association, thereby allowing him to use the instant loan at the Maman-man’s discretion,” which read to the effect that “the victim Nonindicted 3 also attempted to enable him to use the instant loan.”

G) Afterwards, the victims stated to the effect that “the victim Nonindicted 3 was unaware of the victim’s embezzlement crime committed by Nonindicted 1,” and reversed the previous statement. On May 31, 2017, the prosecutor affiliated with the former District Prosecutors’ Office prosecuted the victim Nonindicted 1 as the crime of violating the Specific Economic Crimes Act (Embezzlement). On the other hand, the victim Nonindicted 3 was subject to a disposition of non-indicted 1 on the ground that there is insufficient evidence to prove that he was involved in the crime of occupational embezzlement committed by Nonindicted 1.

H) On August 17, 2017, the Jeonju District Court convicted the victim Nonindicted 1 on the charge that “The amount of KRW 500 million out of the instant loans transferred from the instant cooperative account to the account in the name of Nonindicted Company 4 was arbitrarily used after it transferred from July 7, 2016 to the account in the name of Nonindicted Company 14, a total of KRW 149,080,000 to November 30, 2016, and arbitrarily used the instant association funds in the amount of KRW 1.149,000,000 from that time to November 30, 2016,” was sentenced to a suspended sentence of imprisonment for two years, three years, and 160 hours of community service order (former District Court 2017Da114), and the said judgment became final and conclusive as is.

I) On September 5, 2017, the special general meeting of the instant association was held at the “(trade name omitted) restaurant” located in the former city at the time of the former city, in order to discuss matters such as the expulsion of members, amendment of the articles of association, merger of businesses, and election of executive officers with respect to Nonindicted 15. Meanwhile, on August 2017, the Defendant obtained a written judgment of embezzlement from the members of the instant association through Nonindicted 15, and made the instant statement to the members of the instant association who enter the said restaurant building near the entrance of the “(trade omitted) restaurant” on the day when the said special meeting was held. The Defendant took part of the written judgment of embezzlement case while making the instant statement to the members of the instant association who enter the said restaurant building at the seat of the “(trade omitted) restaurant” on the day when the said general meeting was held. The Defendant attended the said special general meeting and referred to the embezzlement case of Nonindicted 1 and made remarks

2) As to the part concerning defamation against the victim non-indicted 1

A) Examining the aforementioned facts and the following circumstances revealed by the evidence duly admitted by the first instance court and the lower court in light of the legal doctrine as seen earlier, the Defendant’s timely statement about Nonindicted 1 via the instant speech and the distribution of the judgment document on embezzlement conforms to the truth. Even if there were some unclear parts as to whether it is true, there was considerable reason for the Defendant to believe that it is true.

(1) The important part of the facts alleged by the Defendant against Nonindicted Party 1 through the distribution of the instant statement and the instant judgment of embezzlement is that “the victim Nonindicted Party 1 was convicted of embezzlement and conviction of the property of the instant association,” which is consistent with the objective facts in light of the aforementioned facts recognized.

(2) The Defendant made the instant statement to allow its members to read the written judgment of embezzlement case, and the written judgment of embezzlement case also contains the purport that Nonindicted Party 1 returned the amount of embezzlement damage. Considering these circumstances, it is difficult to deem that the victim Nonindicted Party 1 embezzled the entire amount of the property of the instant association or made a statement that “the entire amount of the property of the instant association was embezzled or the amount of embezzlement was not returned.”

(3) In light of the method, period, and amount of embezzlement of Nonindicted 1 stated in the judgment of the instant case, it seems that the Defendant, a representative of the instant association, could not have committed the said crime without the victim Nonindicted 3’s involvement or implied consent.

B) Furthermore, examining the aforementioned facts and the following circumstances revealed by the evidence duly admitted by the first instance court and the lower court in light of the legal doctrine as seen earlier, it is reasonable to view that the Defendant’s alleged facts constitute “an act related to public interest” in relation to the union members, who are the other party to the expressive act, and that the Defendant’s principal motive or purpose stated such facts was also for “public interest.”

(1) The instant cooperative is a “cooperative” to which the Framework Act on Cooperatives applies, and is operated as an investment of its members (20 million won per unit). Members are liable to the extent of their amount of investment, and may request the cooperative to refund its shares when withdrawing from the cooperative (Articles 22, 24(1), 26, and Articles 13, 14(1), 16, and 18(1) of the Framework Act on Cooperatives. Accordingly, the method of property management or financial status of the cooperative is an important concern for its members.

(2) If it is recognized that Nonindicted 3, the president of the instant cooperative, neglected his/her duties and thus the act of embezzlement by Nonindicted 1 was committed, Nonindicted 3, the president of the instant cooperative, may bear an obligation to compensate for the damages suffered by the cooperative by the said embezzlement or be dismissed from the president (Article 39(1) and (2) of the Framework Act on Cooperatives, Article 56(1) and (2) of the instant Articles of association), and the existence of liability as the representative of the said Nonindicted 3’s association is also a matter of interest

(3) However, the fact that Nonindicted 1, who is only a promoter of the instant association, embezzled the property of the association over KRW 1.1 billion over several months is in itself a structural problem in the management of the association’s property and Nonindicted 3, the chief director of the association, is not negligent in performing his/her duties. Thus, the above fact may be deemed to relate to the overall interest and interest of the association members.

(4) In order to inform the members of the embezzlement of Nonindicted 1’s embezzlement, and to hold the responsibility as a manager of Nonindicted 3’s property, the Defendant knew the victim Nonindicted 1’s embezzlement by taking advantage of only the members of the association. The Defendant used the same expression as “Misf.” or used the same personal information and criminal records of the victim Nonindicted 1 in the written judgment on the embezzlement case, it cannot be deemed that there was a purpose of slandering the victim Nonindicted 1.

C) Ultimately, since the Defendant’s act of defamation by a statement of fact against Nonindicted 1 is true and solely pertaining to the public interest, its illegality is excluded in accordance with Article 310 of the Criminal Act.

Unlike this, the lower court erred by misapprehending the legal doctrine on the grounds for the exclusion of illegality as stipulated in the above provision, thereby adversely affecting the conclusion of the judgment.

3) As to the part concerning defamation against the victim non-indicted 3

A) Examining the aforementioned facts and the following circumstances revealed by the evidence duly admitted by the court of first instance and the court below in light of the legal principles as seen earlier, the Defendant’s timely statement against the victim Nonindicted 3 (the purport that Nonindicted 3 was involved in the crime of embezzlement by Nonindicted 1) through the instant speech is false, and further, it cannot be deemed that the Defendant was proven to the extent that there is no reasonable doubt that the Defendant was aware of such false facts.

(1) Without obtaining the approval of the general meeting or the board of directors of the instant association, Nonindicted 3 paid KRW 600 million in addition to KRW 1.4 billion for the acquisition of assets under the instant agreement for the transfer and acquisition of assets to Nonindicted Company 4, who was in office as the representative director, in addition to KRW 1.4 billion, there is room for recognizing the violation of the duties of the victim Nonindicted 3 as the manager of the instant

(2) In light of the victim Nonindicted 3’s status in the instant union and Nonindicted 4, the relationship between the victim Nonindicted 3 and Nonindicted 1, and the method, period, and amount of embezzlement of Nonindicted 1, it cannot be readily concluded that the statement made to the effect that “the victim Nonindicted 3 was aware of the fact that Nonindicted 1 would use the instant loan for personal purposes” was investigated as a suspicion of occupational embezzlement and that “the victim Nonindicted 3 would have used the instant loan for the personal purposes.”

(3) The fact that there was a public prosecutor’s disposition on the suspicion of occupational embezzlement by Nonindicted 3 cannot be deemed as having been proven solely on the basis of the fact that there was a prosecutor’s disposition on the charge of occupational embezzlement. The evidence submitted by the public prosecutor alone does not find any additional circumstances to acknowledge it.

B) On the contrary, the lower court erred by misapprehending the legal doctrine on the burden of proof of the crime of defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, and the degree of proof necessary for finding guilt, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Scope of reversal

For the foregoing reason, the part of the lower judgment’s defamation should be reversed. However, since the above and the remaining parts of the lower judgment are concurrent crimes under the former part of Article 37 of the Criminal Act, a single sentence should be imposed on the entire part. As such, the remainder of the lower judgment should also be reversed along with

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)