[2] The meaning of "public performance" among the elements of defamation / In a case where the public performance of defamation is acknowledged on the grounds of the possibility of spreading, the content of the act as a subjective element of defamation and the method of determining whether the act was intentional

[3] In a case where the Defendant, a marina operator, was indicted on charges of damaging the Defendant’s reputation by openly pointing out false facts by stating that “A, who is an employee of a marina business entity that supplies goods to marina, grants sales expenses to other business entities; how much the sales expenses are given; and how much the sales expenses have been received from various service enterprises; and it is now under the back investigation,” the case holding that the lower court found the Defendant guilty of the charges of defamation, which erred by misapprehending the legal doctrine as to the intention, performance, or possibility of radio wave in the crime of defamation

[2] The public performance, which is the constituent element of the crime of defamation, refers to a state in which an unspecified person or a large number of people can be recognized. Even if a fact was spreaded to an individual person, if there is a possibility of spreading it to an unspecified person or an unspecified person, the dissemination of a fact to a specific person would not be performed unless it satisfies the requirements of public performance. On the other hand, in a case where the public performance of defamation is acknowledged on the ground of the possibility of dissemination, it is necessary to have dolusent intent as a subjective element of the constituent element of the crime, and as such, there is a need to be an awareness of the possibility of dissemination, as well as an internal intent to accept such risk. Whether an actor permitted the possibility of dissemination should be confirmed from the perspective of an offender, taking into account how to evaluate the possibility of dissemination if the general public is based on

[3] In a case where the Defendant, an operator of marina business, was indicted on charges of damaging Party B by stating that “A, who is an employee of the business entity that supplies marina products, grants the cost of selling marina products to other business entities, how much the cost of selling the marina products?” the Defendant received the cost of selling the marina products from several service companies, and then, during the back investigation, received false facts,” the Defendant was indicted of impairing Party B’s reputation by openly pointing out false facts, the case holding that the lower court’s determination that it was difficult to acknowledge that the Defendant did not know that there was an intention or a misunderstanding of the legal doctrine on the possibility of disseminating Party B’s food products and amount after the inventory inspection, and that it was difficult to view that the Defendant did not know that there was an intention or a misunderstanding of the circumstances that it was difficult for the Defendant to view that there was an intention or a misunderstanding of the legal doctrine on the possibility of disseminating Party B’s food products from the supplier, and that it was difficult to view that the Defendant did not know that there was an intention or a misunderstanding of other public performance.

1. For the crime of defamation to be established, it is required to engage in an act of publicly expressing specific facts sufficient to undermine a person’s social reputation with intent to defame another person as a subjective constituent element (see Supreme Court Decision 2010Do2877, Oct. 28, 2010). Therefore, in a case where a statement was made that defames another person in the course of asking questions to verify the authenticity of an infinite written questioning, it is difficult to acknowledge the intention of defamation in light of the motive thereof (see Supreme Court Decision 85Do588, May 28, 1985).

In addition, the public performance, which is the constituent element of the crime of defamation, refers to a state in which many and unspecified persons can be recognized. Even if a person spreads a fact individually, if there is a possibility of spreading it to many and unspecified persons, it shall be deemed that there is no public performance to a specific person (see, e.g., Supreme Court Decisions 9Do5622, May 16, 2000; 2010Do7497, Sept. 8, 2011). Meanwhile, in a case where the public performance of defamation is recognized on the ground of the possibility of dissemination, there is a need for doluence as a subjective element of the constituent element of the crime, and furthermore, there is an intention to deliberate not only to recognize the possibility of dissemination, but also to allow the risk. Whether the actor permitted the possibility of dissemination or not should be confirmed from the perspective of the general public on the basis of specific circumstances, such as the form and situation of the act externally expressed, etc. (see, e.g., Supreme Court Decision 2005Do1784.

2. The summary of the facts charged in this case is that the Defendant, an operator of ○○○○ Mart, was the Nonindicted Party, who supplies the ice cream to the said Mart, and, “The other company grants 200,000 won and 4,000,000 won to the Mart. 1, 200, and how much the ice cream has made a decision on how to grant the sales cost? The store manager received the sales cost from the various service companies, and is currently under the back investigation, thereby impairing the victim’s reputation by openly stating false facts.”

The lower court found the Defendant guilty of the instant facts charged on the ground that the Nonindicted Party, who is the business partner employee, had the intent to receive and use cash sales expenses, made the statement as to the facts charged.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The record reveals the following circumstances.

① Around January 2013, the Defendant newly built a three-story commercial building, and used the first floor as ○○○ Marart, and the second floor as Maart’s office.

② On July 10, 2014, the Defendant started the business of ○○ Mart, 2014, and employed the victim as a store, and entrusted the management of Mart to the victim.

③ On December 20, 2014, the Defendant conducted a inventory inspection on December 20, 2014, and discovered the loss of certain items and amount, from that time, identified the victim, and had the parties concerned confirm the victim’s corruption.

④ On May 20, 2015, the Defendant heard that the victim had received cash payments from the suppliers, and asked the Nonindicted Party, an employee of the company that supplies the ice cream, to the second floor office, who made the ice cream payments. As such, the Nonindicted Party denied the payment of the cream payments to the victim, the Defendant continued to answer the question, stating that “I would know about the fact that I would ask about the crypt, and I would like to answer the fact that I would like to receive the back payments from many companies.”

⑤ At the end of the conversation, the Defendant told the Nonindicted Party that he would have asked such questions to the Nonindicted Party, and made it reasonable that only the married person would have told the Nonindicted Party.

6) After that, the Nonindicted Party discussed the victim that the Defendant asked such questions.

B. In full view of the aforementioned circumstances, the Defendant should be deemed to have made such remarks as indicated in the facts charged in the process of hearing the written lawsuit that the victim received the sales costs from the suppliers and asked the Nonindicted Party, who is an employee of the supplier, to verify the authenticity of the written lawsuit and asking questions as to whether the Nonindicted Party had paid such sales costs to the victim.

Therefore, examining these facts in light of the legal principles as seen earlier, the Defendant did not make such remarks with the intent to undermine the victim’s social evaluation or with awareness that such consequences may arise, but merely made such remarks in the course of questioning about whether or not the victim was paid or received expenses, and thus, it is difficult to recognize the Defendant’s intentional act of defamation.

Although the lower court determined that the Defendant made such remarks for the purpose of personal use with the Defendant’s own sales costs, the Defendant’s intent, as long as it is evident that the Defendant made such remarks in the course of questioning the Defendant about what the Defendant intended to verify the receipt of the victim’s sales costs or what the Defendant intended to verify the fact of receipt of the victim’s sales costs, may not affect the Defendant’s intentional determination of defamation.

Meanwhile, considering the following: (a) the Defendant’s talked with the Nonindicted Party in an office without any way; (b) the Nonindicted Party asked the Nonindicted Party questions as to whether the Defendant would receive the Victim’s sales expense; and (c) the Nonindicted Party was aware of the fact that the Nonindicted Party asked the Victim to ask such questions; and (d) the Nonindicted Party thereafter talked about such fact to the Victim, but there is no circumstance to see that there was an intention to see the Defendant’s awareness of the likelihood of spreading and the risk thereof.

C. Nevertheless, the lower court found the Defendant guilty of the instant facts charged solely on the grounds stated in its reasoning. Therefore, the lower court erred by misapprehending the legal doctrine on the intent, performance, or possibility of spreading defamation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

4. 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 Kim So-young (Presiding Justice)