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 a true fact and solely pertains to the public interest, the term “material fact” refers to a fact that is consistent with objective facts. In light of the overall purport of the content, even if the material part is different from truth or somewhat exaggerated expressions, the term “when it comes to the public interest” means a fact that concerns the public interest, and such fact ought to be objectively indicated for the public interest, and such an actor also includes not only the matter concerning the public interest of the State, society, and other general public, but also the interest and interest of a particular social group or its members. Whether the alleged fact relates to the public interest ought to be determined by comparing the contents and nature of the relevant fact, the scope of the counter-party whose publication was made, the method of expression itself, etc., with the degree of infringement on reputation that may be damaged or damaged by such expression, and the provision of Article 209-198 of the Criminal Act should also be deemed as having no other motive or purpose of application of the same Act.

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 cannot be viewed as false facts (see, e.g., Supreme Court Decision 99Do4757, Feb. 25, 2000). 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 they are subjective or objective requirements, and thus, in a case prosecuted for defamation by publicly alleging false facts, the fact that the publicly alleged facts are inconsistent with objective truth and that the Defendant knew that the publicly alleged facts were false, and all of the aforementioned facts were proved by the prosecutor. However, if the prosecutor actively proves the existence of a specific period of 120 years and without any reasonable proof at the place of such fact, it should be proven.

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 association”), 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 Jeonju District Court’s punishment 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 community service order. On September 10, 2017, the Defendant conspiredd Nonindicted Party 1’s member of the instant association at the entrance of the “○○○ cafeteria cafeteria cafeteria” located in the previous city of September 10, 2017, and embezzled Nonindicted Party 1’s reputation by publicly alleging the fact that he had damaged the victim’s reputation by publicly alleging Nonindicted Party 3 (hereinafter “the instant 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, as the victim Nonindicted 1 was unaware of, the victim Nonindicted 1 conspired with Nonindicted 3, and distributed a written judgment of embezzlement case in collusion with the victim Nonindicted 1, who embezzled the money of the instant association. ② In the judgment of embezzlement case, the instant judgment contained not only the victim Nonindicted 1’s criminal facts but also personal information such as personal information, etc., and the expression of “halling” does not coincide with the contents of the written judgment of embezzlement case where the amount of damage was returned. ③ The victim Nonindicted 1 became known to the majority of the members who were not well aware due to the Defendant’

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 former District Prosecutors’ Office to 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 additional acquisition of taxi companies are required, and the victim Nonindicted 3 said to be repaid later after using the instant loan.” The victim Nonindicted 3 also stated to the effect that “the victim Nonindicted 1 was able to establish the instant association, and thus, allowed him to use the instant loan in order for 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 a crime of violating the Specific Economic Crimes Act (Embezzlement). On the other hand, the victim Nonindicted 3 was suspected of having been involved in the crime of occupational embezzlement by Nonindicted 1 on the ground that there is insufficient evidence to prove that the victim was involved in the crime of occupational embezzlement by Nonindicted 3.

H) On August 17, 2017, the Jeonju District Court convicted the victim non-indicted 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 Non-indicted 4” was transferred from July 7, 2016 to the account in the name of Non-indicted 14 corporation, and used at will, from that time, 35 times until November 30, 2016, the sum of KRW 1.149,08 million was used at will as personal customers, living expenses, etc.” was sentenced to a suspended sentence of imprisonment for 2 years, 3 years, and 160 hours of community service order (the Jeonju District Court Decision 2017Da114), and the said judgment became final and conclusive as is.

I) On September 5, 2017, the special meeting of the instant association was held at the “○○○○ cafeteria” restaurant located in the former city at the time when the general meeting of the instant association was held in order to discuss the issues, such as the expulsion of co-defendant 2, amendment of the articles of association, merger of businesses, and election of executives, etc. On the other hand, the Defendant obtained the judgment of embezzlement from co-defendant 2 around August 2017, and made the instant statement to the members who enter the said restaurant building near the entrance of the “○○ cafeteria cafeteria” building on the day when the said special meeting was held, while making the instant statement to the members who enter the said restaurant building at the seat of the “○○ cafeteria” building on the day when the special meeting was held, he participated in the said special meeting and mentioned the embezzlement of the victim non-indicted 1 and made statements to the effect that he should be held liable for the embezzlement.

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

A) Examining the following circumstances revealed through the aforementioned facts-finding, the first instance court and the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier, the Defendant’s alleged facts against Nonindicted 1 through the instant speech and the distribution of the written judgment of embezzlement case conforms to the truth. Even if it is somewhat unclear whether it is true or not, there were reasonable grounds to believe that it is true.

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

(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 Nonindicted Party 1 made a statement by which the victim embezzled “total amount of the property of the instant association” or “not returning the amount of embezzlement damage.”

(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 following circumstances revealed by the aforementioned facts and 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). A cooperative member bears the responsibility to the extent of the amount of investment, and where a cooperative withdraws from the cooperative, a cooperative may request the cooperative to refund its share (Articles 22, 24(1), and 26 of the Framework Act on Cooperatives, and Articles 13, 14(1), 16, and 18(1) of the instant Articles of Incorporation. 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 be liable to compensate for the damages suffered by the cooperative by the said embezzlement or dismissed from the president (Article 39(1) and (2) of the Framework Act on Cooperatives, and Article 56(1) and (2) of the instant Articles of association). The existence of liability as the representative of the cooperative by Nonindicted 3, as well as the matters

(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. It cannot be deemed that the Defendant used the same expression as “ drinking” or used the same personal information and penal records of the victim Nonindicted 1 in the written judgment on the embezzlement case, or that there was a purpose to slander the victim Nonindicted 1 on the sole ground that the written judgment on the embezzlement case contains personal information and penal records of Nonindicted 1.

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

Unlike the above, the court below erred by misapprehending the legal principles on the grounds for the elimination 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 following circumstances revealed through the aforementioned facts-finding, the first instance court and the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier, the Defendant’s alleged facts (the purport of Nonindicted 3’s participation in the crime of embezzlement by Nonindicted 1) against the victim Nonindicted 3 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 is difficult to readily conclude 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 been using 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 defamation by a statement of false facts under Article 307(2) of the Criminal Act, and the degree of proof necessary for recognition of 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, and the remaining parts of the lower judgment should also be reversed together with

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-hee

Chief Justice Kim Jong-hwan