[2] Whether the creation and expression of a film can require the strict truth of the same level as that of a report on facts through a media (negative)

[3] The case holding that since there are reasonable grounds to believe that the part where the film producer expressed ○○ unit’s training soldiers, which is the model of the film, as murdering or death penalty, etc., the film producer does not constitute a tort due to defamation, since it is true

[4] The standard for determining whether a description of facts about a person or a case constitutes defamation against the person in a film whose actual character is a film

[5] Whether a commercial motion picture producer is liable for defamation caused by the advertisement and publicity of a motion picture in a case where the producer believed that it is true and there is a reasonable ground to believe that it is true during the advertisement and publicity of the motion picture (negative)

[2] In light of the purport of the Constitution guaranteeing the freedom of arts, the creation and expression of a film may not require a security of strict authenticity, such as a report of facts through the media. This is because, in the case of producing a commercial film based on historical facts, each color of author and supervisor cannot necessarily follow in the formation of a person’s re-production or story. As such, the film production should be allowed to a certain extent to see historical facts for commercial entertainment or the enhancement of the audience’s impulse, and as a general public, it does not think that all of the contents of the film are consistent with actual facts. Moreover, since it is difficult to confirm the truth due to objective materials that can verify historical truth after the lapse of time, it may be considered relatively to protect the deceased’s personality right or the deceased’s freedom of creation or art rather than for the deceased’s or his/her family members’ personality right.

[3] The case holding that since there are reasonable grounds to believe that the part of ○○ unit’s training soldiers, a film model, expressed ○○ unit’s homicide or death penalty, etc., which is a murder or death penalty, does not constitute a tort due to defamation

[4] Where a description of facts about a person or a case can be evaluated as a description of the fact or case from the perspective of the general public when the material or a description of the material or the case is viewed as having been actually done by the general public, it may be defamation against the material. However, if the material or the description is merely for the formation of stories or the extreme effect, and the general public does not accept it as a description of fact in accordance with common principles and in a manner, it does not constitute defamation. Therefore, for the development of the film and the extreme effect, it belongs to the area of the freedom of creation unique to the film producer. However, it is exceptionally subject to defamation only in cases where the material or the material or the material or the material or the material or the material or the material or the material or the material or the material or the material or the description of a specific person is expressed.

[5] In commercial films, the elements of which are the appropriate harmonization and choice between historical facts and extreme licensings, it should not be understood that all the contents of the film were true, and it should not be understood that they were true, and that they were based on historical facts as a whole, and that the facts verified in harmony with the extreme licensing have been reflected to the maximum extent possible (it does not seem that such publicity method deviates from the general public relations practices of commercial movies based on historical facts). Furthermore, if a film producer believed that the contents of the film in the advertisement and publicity were true, and there are reasonable grounds to believe that they were true, he/she shall not be held liable for defamation against the film producer.

2. The costs of appeal are assessed against the Plaintiffs.

A. The Defendants shall not deliver, lease, transfer, or take any other measures against a third party by maintaining the pages as indicated in the pages 3 of the attached Form 1 of the Air Force No. ○○○ Military Team, which appeared on the film display as indicated in the attached Form 2. The Defendants shall not make such equipment as a video tape, DNA disc, Internet video tape, etc., which could mislead the general public as being murder or death penalty, or as being mistaken as being a person of tolerance.

B. The Defendants are jointly and severally liable,

(1) Plaintiffs 1, 2, 3, 4, 5, and 6:

(2) Plaintiffs 7, 8, 9, 10, 11:

(3) Plaintiffs 12, 13, 14, 15, 16, 17, 18, and 19:

(4) Plaintiffs 20, 21, 22, 23, 24, 25, and 26:

(5) Plaintiffs 27, 28, 29, 30, 31, 32:

(6) Plaintiffs 3, 34, 35, 36, 37, and 38:

(7) Plaintiff 39,40:

(8) Plaintiffs 41, 42, 43, 44, 45, 46, and 47:

(9) Plaintiffs 48, 49, 50, 51:

(10) Plaintiff 52:

(11) Plaintiffs 53, 54, and 55:

(12) Plaintiffs 56, 57, 58, and 59:

It shall pay 100,000,000 won and 20% interest per annum from the day following the day of service of the application for modification of the claim of this case to the day of complete payment.

2. Purport of appeal

The part against the plaintiff falling under the following order among the judgment of the first instance shall be revoked.

A. The Defendants shall not deliver, lease, transfer, or take any other measures against a third party by maintaining the pages as indicated in the pages 3 of the attached Form 1 of the Air Force No. ○○○ Military Team, which appeared on the film display as indicated in the attached Form 2. The Defendants shall not make such equipment as a video tape, DNA disc, Internet video tape, etc., which could mislead the general public as being murder or death penalty, or as being mistaken as being a person of tolerance.

B. The Defendants are jointly and severally liable,

(1) Plaintiffs 1, 2, 3, 4, 5, and 6:

(2) Plaintiffs 7, 8, 9, 10, 11:

(3) Plaintiffs 12, 13, 14, 15, 16, 17, 18, and 19:

(4) Plaintiffs 20, 21, 22, 23, 24, 25, and 26:

(5) Plaintiffs 27, 28, 29, 30, 31, 32:

(6) Plaintiffs 3, 34, 35, 36, 37, and 38:

(7) Plaintiff 39,40:

(8) Plaintiffs 41, 42, 43, 44, 45, 46, and 47:

(9) Plaintiffs 48, 49, 50, 51:

(10) Plaintiff 52:

(11) Plaintiffs 53, 54, and 55:

(12) Plaintiffs 56, 57, 58, and 59:

20,000,000 won and 20% interest per annum from the day following the day of service of the application for modification of the purport of the claim of this case to the day of complete payment.

The following facts are either disputed between the parties, or acknowledged by Gap evidence 1-1 through 13, Gap evidence 5, Gap evidence 43-1, and 43-2 by integrating the whole purport of the pleadings:

A. The plaintiffs, which was established around April 1968, had 12 bereaved families of the deceased non-party 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 (hereinafter the above 12 persons together referred to as the "the deceased of this case"), who were training soldiers of the deceased non-party 1, 2, 3, 6, 5, 6, 7, 8, 9, 10, 11, and 12 (the specific relationship between the plaintiff and the deceased of this case is as shown in the list of the plaintiffs as shown in attached Table 1) of the defendant Sinma Services (the corporation was divided from Plener on June 1, 204) of the defendant corporation (the film of the defendant corporation was divided from Plener on June 1, 204), as shown in attached Form 2.

B. On January 21, 1968, the case where a number of soldiers, police officers, civilians, etc. who avoided North Korea’s armed forces, including the Kim Shin, died during the process of attempting to commit an attack against the Blue House on the Blue House on January 21, 1968. In order to respond to this, the Korean government established ○○ unit with the special unit belonging to the air force for the purpose of the North Korea’s project, including the attack against North Korea’s drinking crossbows, and the recruitment of 31 training soldiers (hereinafter “training soldiers”) and the operation of the military unit was involved at that time.

C. The period of soldiers, including the head of the ○○ Military Department’s educational register, died of a training team who was established in the Smido, which is an unmanned island in the Yellow Sea, from the outside and conducted very high-Robbery special training. From the point of creation to August 22, 1971, one trainee was killed in the special training course pending from the time of creation to August 22, 1971. In the case of six training soldiers, he/she died of a training team’s death by death penalty, etc. by a time soldier and a training soldier in relation to the escape case, the female rape case, etc.

D. At the first stage, ○○ unit’s training team, which was established for the purpose of short-term training of high-speed fighters, provided considerable supply materials for the first time. However, the central head of information division and the change in inter-Korean relations, and the need for dampness against North Korea has been deteriorated. Therefore, the level of interest and support for the ○○ unit was significantly lowered, and as special training conducted after being isolated from the outside was continued for three years or more, unexpected cases, such as female Rape cases, such as training soldiers and key soldiers, have occurred, and the conflict between the training soldiers and key soldiers has been raised, and it became controversial whether the ○ unit can continue to exist as it is. On August 23, 1971, 24 training soldiers and 24 training soldiers were arrested in the direction of the 18th police station, including the Seoul metropolitan bus during which they were parked in the new wall, and then died in the direction of the 18th police station and the Seoul metropolitan bus during the training.

E. In the process of escape from the U.S. as above and entering Seoul, most of 24 training soldiers were killed at the scene due to a total attack or a shot explosion, etc., and four remaining training soldiers, such as Nonparty 8, 2, 13, and 14, were referred to the Gun Council after the investigation by the military investigation agency. Four persons, such as Nonparty 8, etc. were tried to kill during the investigation and trial process, and stated the progress and method of supporting the 00 unit, etc. The full bench sentenced the death penalty against the above four persons, and the death penalty against them was executed on March 10, 1972 after the judgment became final and conclusive.

F. In 199, Nonparty 3 written “Non-party 33’s historical fact-finding (hereinafter “the ○○ unit”) as its seat from the establishment of the ○○ unit to the date of dissolution (hereinafter “the ○○ unit”). The film of this case was produced on the basis of the following: (a) the scenario work was conducted by writing the lusium; and (b) the film was opened on April 24, 2003 (the 15 years old and older) and was opened on December 24, 2003 (the 1.5 years old and older) and the 11.0 million spectators were mobilized in Korea and Japan; and (c) the Defendants were produced the motion picture of this case on July 2004 and sold the lusium and the video tape to the present day.

2. The parties' assertion

A. The plaintiffs' assertion

(1) The Defendants stated false facts as if they selected the way of North Korean War Institute without any choice in order to escape the death penalty as a result of murder or death penalty, as a pure civilian who had not been tried by the deceased at the time of the production of the film in this case, and was aware that the deceased would merely be able to receive high remuneration and guarantee the future, as a pure civilian who had not been tried by the relevant parties. Furthermore, the Defendants stated false facts in the film in this case as if the deceased selected the way of North Korean War Institute as being in the status to be faced with the death penalty. ② Despite the fact that the deceased’s ○○ unit training soldiers, including the deceased, were not able to learn or unfold the face of North Korean military in several times during the training period, they made the deceased appear to have been the deceased as the co-ordinator, by expressing the face of the enemy, and ③ the film opening of the film, film posters, film advertising, and official homepage of the film in this case, thereby impairing the deceased’s reputation and reputation of the deceased in this case.

(2) Therefore, the Defendants are deemed to have concerns over infringing the honor or personality rights of the Plaintiffs, who are the deceased and their bereaved family members, by misunderstanding that the ○ military unit trainees appearing in the film of this case were murdered or sentenced to death penalty, or as a malutist, and should not be displayed or produced and disposed of as other visual materials, etc., by maintaining the pages, pictures, and caption as indicated in the pages 3., which are included in the film of this case. The Defendants are obliged to pay consolation money of KRW 100 million to each of their bereaved family members as compensation for damages caused by the damage of the honor of the deceased and their bereaved family members.

B. The defendants' assertion

(1) In most of the materials referred to at the time of the Defendants’ production of the film of this case, including the original writers of the film of this case, the criminal was in the form of alcoholic beverage as the process or origin of training soldiers’ solicitation or origin. The detailed contents were laid into military secrecy, and thus, the Defendants did not know whether training soldiers were pure civilians.

(2) In the film of this case, the face of the spawn of the trainees had been trained thoroughly for North Korea. Rather, the overall form of the trainees in the film of this case is considered to be a thorough anti-publicist and anti-nationalism in which the spawn of Kim Il and the unification of the spawn for the unification of the early country.

(3) On the other hand, the Defendants, reflecting new facts revealed after the motion picture screening of this case, have taken measures to modify the caption of motion pictures and delete the relevant contents of official website.

(4) Although a commercial film is based on a historical person or fact, it should be viewed as a work of art based on the Ba-gu, and as a result of the passage of time in the case of historical facts such as the case, the freedom of inquiry or expression on historical facts should be protected more than the honor of the deceased or his bereaved family members. According to this, the Defendants cannot be said to have committed defamation as alleged by the Plaintiffs, or had intention or negligence on defamation.

3. Determination

A. General theory

Article 22(1) of the Constitution provides that “All citizens shall enjoy the freedom of learning and arts.” The freedom of arts covers the freedom of artistic creative activities, including the right to decide voluntarily on creative materials, creative forms, and creative processes, and the freedom of artistic expression that can exhibit, perform, and distribute artistic works to the general public. Since such freedom of arts is not an unlimited fundamental right, it shall not infringe another person’s right and honor, public morals, or social ethics.

In general, film is a creative creation in which virtual figures have developed through the commercial ability of producers, including scenario writers and film surveillance, and is ordinarily a model of a case or a person who actually existed at the time of inducing public interest and sense. However, in a case where a film whose model was a film of an actual case or a person is a model damages the reputation of the person or a person’s personality right by distorted historical facts, etc., the victim may seek for removal of the surface at issue against the film producer, etc., and even if the model was already dead, if necessary to protect the dignity and value of human being from serious distortion of the deceased’s personality right after the death, the victim may exercise such right on the basis of infringement of personal right, and also claim compensation for mental suffering from defamation.

In such a case, the determination of whether the contents of a film contain the contents that harm a specific person’s reputation should be based on the overall flow of the film contents, the method of forming stories and screen pictures, the ordinary meaning and method of linking the contents used, the degree of description of the appearing figures of the film and the specific person’s relation, etc., on the premise that the general public’s audience contact with the film with the general public at the same time with the objective of the film contents. Moreover, the overall impression of the film contents to the audience should be taken into account, such as the social trend, etc., which is a larger subject or background containing the film.

However, even in cases where a film modeled for real figures or cases has committed an act that defames an individual’s reputation by expressing false facts, it shall be deemed that the actor has believed it as true and there is considerable reason to believe such act (see Supreme Court Decision 97Da19038, Feb. 27, 1998). As to the criteria for its determination, whether there is considerable reason to believe the contents of the report as true or not in the defamation through the report of the ordinary press media should be determined by taking into account various circumstances such as the contents of indicated facts, the basis for believing that the report is true or true, the credibility and credibility of factual verification, the victim’s degree of damage caused by the report, etc., and it is more appropriate and sufficient for the actor to verify the truth or truth of the report in view of the fact that the authenticity of the report is supported by objective and reasonable materials or reasonable grounds, and in light of the purport of the Constitution guaranteeing the freedom of arts, if the contents of the report are more likely to be in accordance with the historical and objective contents of the report of the film, it should be considered in terms of the historical and contents of the report.

From this point of view, first of all, the part that the Defendants expressed the deceased as murder or death penalty, etc., and the part that the Defendants expressed them as a notarialist, and whether the caption and publicity contents of the film of this case have impaired the honor of the deceased or the plaintiffs, and second, we examine whether the Plaintiffs can seek against the Defendants for the prohibition of displaying them or producing and disposing of them as other videos, etc., by maintaining the pages, ambassadors, and caption indicated on the page 3., which are included in the film of this case on the ground of infringement of the rights of the deceased and the plaintiffs.

B. Whether the film of this case damaged the deceased or the plaintiffs' honor

(1) The part that expressed murder or death penalty

(A) Whether the above part damaged the deceased or the plaintiffs' honor

First of all, this paper examines the recruitment process or origin of the trainee in the film of this case, and then examines the circumstances in which the Deceased was actually trained by the ○○ unit, and then examines whether the contents of the film of this case impair the honor of the Deceased or the plaintiffs.

(i)specific film content concerning the recruitment process of trainees or ingredients of trainees;

According to the statements or images of Eul evidence Nos. 5 and 6 (the evidence Nos. 5 and 6 of this case is the scenario and DNA disc of the film of this case; hereinafter the film of this case does not have any separate evidence when indicating the contents of the film of this case), the film of this case was sentenced to death penalty and tried to murder with respect to non-party 15 (the class No. 3 of this case, the class No. 3 of the class No. 15 of the class No. 15 of the class No. 15 of the class No. 15 of the class No. 16 of the class No. 17 of the class No. 2 of the class No. 5 of the class No. 1 of the class No. 6 of the class No. 1 of the class No. 1 of the class and the class No. 6 of the class No. 2 of the class No. 2 of the class No. 2 of the class No. 15 of the class No. 3 of the class No. 2 of the class of the class.

단지 이 사건 영화의 여러 대목에서 훈련병들의 모집경위나 출신성분을 간접적으로 암시하는 내용들이 있는데, 이를 구체적으로 살펴보면 아래와 같다. ① 훈련병들이 실미도에 상륙한 직후에 교육대장 소외 16이 단상에 올라가서 훈련병 전원에 대하여, ‘보다시피 난 군인이다. 너희는 사형수이거나 사회 밑바닥에서 아무 희망도 없이 살던 인간쓰레기들이다. 그러나 너희가 그 군복을 입는 순간 나와 너희의 목표는 하나가 된다. 대한민국을 수호하고 조국통일의 과업을 함께 완수할 동지가 되는 것이다. 나와 여기 있는 기간병들은 너희가 자신의 생명과 국가의 명령을 지켜낼 수 있도록 훈련시킬 것이다. (중략) 각오가 된 자는 자기 손으로 군복을 입는다.’라고 연설하고, 이에 관하여 주연급 인물인 소외 18(나중에 제2조 조장이 됨, 강신일 역)을 비롯한 다른 훈련병들이 체념한 듯이 군복을 입으면서 ‘돌아갈 곳이 있는 것도 아니고, 돌아갈 방법이 있는 것도 아니고...’, ‘씨팔, 이래 죽으나 저래 죽으나 백 번 옳은 소리지.’, ‘언제 안전장치 달고 사시미 뜨러 다녔냐.’라고 대응하고(상영시작 후 15분경), ② 훈련병 소외 19(나중에 취사병이 됨, 강성진 역)가 훈련 도중에 다리를 다치고 나서 기간병 소대장인 조중사(허준호 역)로부터 치료를 위하여 퇴소할 것을 요구받자, 소외 19는 ‘여기서 다시 감방으로 쫓겨가서 오늘 매달리나 내일 매달리나 걱정하면서 살고 싶지 않습니다, 조중사님. (중략) 밥을 짓든 청소를 하든 변소청소도 제가 혼자 다 하겠습니다. 시키는 것은 뭐든지 다하겠습니다. 씨이, 차라리 죽여주십시오.’라는 식으로 애원하고, 그 옆에 있던 제2조 조장 소외 18은 ‘중사님, 누군가 그런 일을 다 해주면 나머지는 훈련에 더 집중할 수 있고 능률도 더 오르지 않겠습니까? (좌중을 둘러보며) 다들 우에 생각하노?’라는 식으로 다른 훈련병들의 동의를 구하자, 그곳에 있던 모든 훈련병들은 이구동성으로 ‘뭘 어떻게 생각합니까? 입장 바꿔놓고 생각해 보십시오. 여기까지 왔는데 다시 돌아갈 미친 놈들이 어디 있습니까?’라고 대응하였으며, 이에 조중사가 수락의 뜻을 비치자 다른 훈련병들은 기쁜 표정을 지으면서 ‘야, 저 새끼, 그러면 산 거야?’라고 이야기하고(상영시작 후 37분경), ③ 교육대장 소외 16이 소외 20에게 ‘지금 ○○부대원들은 재소자보다도 못한 취급을 받고 있습니다.’라고 말하자, 소외 20이 ‘원래 다 재소자들 아닌가?’라고 답변하고, 이에 옆에 있던 오국장이 ‘김일성이 목 따오라고 사형수들 불러 모아놓고 비인간적인 교육을 자행하다니... 하하... 거 외신이 알면 우리를 얼마나 야만적인 국가로 알겠습니까.’라고 호응하였으며(상영시작 후 1시간 13분경, 여기서 ‘사형수’라 언급된 부분은 사실을 적시한 것이라기보다는 ○○부대의 존속 여부가 논란이 되던 상황에서 오국장이 ○○부대의 존재를 부정하고 폄하하고자 하는 냉소적 의도에서 과장하여 표현한 것으로 보인다), ④ 기간병들에 대한 기습공격을 감행한 훈련병들로부터 위협을 받고 있던 기간병 소대장 박중사(이정헌 역)가 훈련병들에게 ‘가, 가까이 오지마. (중략) 어차피 죽을 새끼들이었어. 너희들은 어차피 죽을 목숨인데 우리까지 죽을 수는 없었던 거야.’라고 이야기함에 대하여 소외 17, 15 등이 ‘우리가 왜 어차피 죽을 목숨이야.’, ‘당신들 목숨 값이나 개같이 버텨온 우리 목숨 값이 같은 것이라고 한번만이라도 생각해 줬다면.’이라고 대응하자, 위 박중사가 ‘어떻게 똑같아. 너희 같은 범죄자 출신들이랑 우리들이 어떻게 같아. 이름도 없는 새끼들이랑 우리가.’라고 대꾸하였다(상영시작 후 1시간 48분경, 여기서 ‘어차피 죽을 목숨’이라 언급된 부분은 훈련병들을 전부 사살하라는 상부의 명령을 가리키는 것으로 보인다).

Ultimately, considering the aforementioned language and the method of expression, the overall flow of the film contents, the overall increase of the film contents to the general public, and the social flow that is the subject or background of the film containing the film of this case (the film of this case where Nonparty 16 actually led the recruitment of training soldiers, and even after it was, Nonparty 16 made a speech on all training soldiers, it appears that the expression “the width is death penalty or other human garbage without any desire from the bottom of the society is the most direct explanation of the training soldier’s recruitment process or origin.” It appears that two persons directly described in the recruitment process were set as death penalty, rather than being expressed as murder or death penalty, it appears that it is difficult to see that the above two persons with class 2 of this case, who were the target of death penalty, have no choice but to have no choice but to carry out their duties as the training unit, and that it is difficult to see that they could have been subject to death penalty as alleged by the court below, and that they could have been indirectly expressed for the purpose of the training team of this case.

2) the facts revealed concerning the recruitment process or origin of the trainee;

The following facts may be acknowledged as either in dispute between the parties, or in the entry in Gap evidence 37-4, by integrating the whole purport of the pleadings:

A) The Ministry of National Defense, after screening the motion picture of this case, conducted personal and criminal investigation records and criminal records of training soldiers from January 11, 2005. Among the deceased of this case: ① on July 28, 1967, the deceased of this case was sentenced to imprisonment for 8 months and suspended execution for 2 years; ② on April 2, 1964, 10 months of imprisonment with prison labor from the Seoul Criminal District Court for larceny; on April 7, 1965, 10 months of imprisonment with prison labor for special larceny; on September 17, 1967, 10 months of suspended execution for special assault; ③ in the case of Nonparty 1, the deceased of this case, he was sentenced to imprisonment with prison labor for 10 years; on March 27, 1959; on September 16, 196 of Incheon District Court, he was sentenced to criminal punishment for the remaining short-term larceny; on September 16, 1961.

B) Meanwhile, even before entering the ○○ unit, the court was sentenced to death penalty or imprisonment with prison labor for life or for not less than five years until January 11, 2005, among the remaining training soldiers except the deceased of this case, with respect to other training soldiers whose specific identity was confirmed by the Ministry of National Defense.

C) In the case of Nonparty 8 among the four training soldiers who were referred to the Court-Martial Council due to the U.S. case, the military investigation agency entered the military investigation agency on May 1967, and the military investigation agency stated that he was able to play at ○○ unit in a state where there was no criminal record, in addition to the suspension of indictment, and that in the case of Nonparty 2, 13, and 14, the remaining Nonparty 2, 13, and 14, the military investigation agency stated that he was able to support or join the ○○ unit in a state where there was no criminal record.

3) Stoptop

The details of the recruitment process or origin of training soldiers are descriptions of facts that are likely to accept as actual facts from the perspective of the general public.

According to the facts stated in the above 2) The deceased is not a death penalty in the case of the deceased of this case, and there is no fact that they committed heavy crimes, and no other circumstance seems to exist that may lead to the extreme situation of life as the deceased of the society. This is a sufficient circumstance to view that the deceased of this case was supported by training soldiers by accepting the proposal of the intelligence agency, including monetary compensation and future guarantee, if he performs his duties, not by admitting the deceased of the ○○ unit as a means to escape the execution of punishment.

Nevertheless, the Defendants expressed all training soldiers, including the Deceased of this case as murder, death penalty, or marists in society, may be deemed to have undermined the honor of the Deceased of this case or the Plaintiffs, even though they did not express all training soldiers as murder or death penalty, as alleged by the Plaintiffs.

(B) Whether there was an intentional or negligent act of defamation against the Defendants

As seen earlier, even if the Defendants committed an act that defames the deceased or the plaintiffs by expressing the process of solicitation or origin of the deceased in the production of the film of this case differently from the actual facts, it shall be deemed that the Defendants believed such content as truth at the time of the production of the film of this case and had any reasonable ground to believe such content, and there is no intention or negligence as to defamation. In this regard, after examining the contents of the materials existing at the time of the production of the film of this case, it shall be examined as to whether the Defendants had any reasonable ground to believe that the contents expressed in the film of this case were true.

1) Details of the material that existed at the time of the production of the instant film as to the recruitment process or origin of the trainee;

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings as a whole in each entry of Gap evidence 2 through 6, Gap evidence 9-2, Gap evidence 27-1 through 40, Eul evidence 2 and 9:

A) On August 23, 1971, Nonparty 21, who had been the Minister of National Defense at the time, at the time, entered Seoul, prescribed the case as “comforcing by armed communist militia” at the first press conference, but the subsequent press conference, after several hours, reversed the initial position by making an abstract mentioning the status of the trainee “special crimes or crimes being detained under the air force control.” On August 24, 1971, the above non-party 21, the Air Force Chief Chief Chief Chief Chief Chief Chief 22, the counter-espionage Chief 23, and Non-party 24 of the Ministry of Home Affairs, etc., attended the National Assembly Defense Committee (the internal affairs committee and joint meeting) and responded with members of the National Assembly on the premise that the above case as “special crimes involving war” was referred to as “the military personnel training for the National Assembly members.”

B) In the same context, at the plenary session of the National Assembly held on September 15, 1971 at the plenary session of the National Assembly, Nonparty 25 asked the Prime Minister Nonparty 26 to the effect that training soldiers were not guilty of not less than 10 crimes and not more than 10 crimes against the Prime Minister (or, however, Nonparty 26 continued to have made the statement during the interview of the Seoul Broadcasting (SBS) broadcasted over 2 times in 2004 that “I wish to know that I would like to know that I would like to know, I would like to know that ○ military units were both death penalty and life imprisonment.”

C) Based on the above statements made by senior public officials, the media at that time reported the U.S. case to “military special crime scam,” and reported ○○ military unit training soldiers to “special crimes detained under the air force management.”

D) At the time of the establishment of the ○○ unit, Nonparty 27’s revolving “○○○○” stated that “The number of persons who were the chief of the Central Information Department, was selected by attaching the condition that, to the number of crimes, who were faced with death penalty or life imprisonment and were serving in prison, the crime would be avoided and will begin a new life.”

E) On the basis of the writing written by Nonparty 28, who was the captain of the ○○ military unit, was published in April 1993 on the ○○ military unit training unit “ ○○○○○ unit”, which was based on the name of the Nonparty 28, indicated in the name of Ga, “○○ unit ○○ unit”, the type of occupation prior to the fluence. There was no person who was written in most of the following items: (a) the number of vehicle drivers, fake, retail fluor, the number of base marks, the margs, the marget supervision, the margr, the margr, the margrat, the margrat, the margrat, the margrat, the margrat, the margrat, the margratization, and the marg.

F) In daytime East Asia 207 (No. 4, 1999), as to training soldiers, “the head of the education division at the time” stated the relevant person’s testimony that “the head of the education division sent training soldiers to North Korea as soon as possible, or the head of the organization returned them to the prison, or the head of the organization took the same consideration every day to prepare a solution.”

사) 문화방송(MBC)이 1999. 12. 19. 방영한 “‘이제는 말할 수 있다 - 실미도 특수부대”에서 ‘사형수 출신의 부대원들 죽음을 무릅쓴 청와대행’이라는 제목 아래 ○○부대의 구성원들을 ‘군특수범’이라고 밝혔고, 위 프로그램의 인터뷰에서 위 소외 22는 훈련병들에 관하여 ‘내가 보고받기로는 전부 범법자라고 그럽디다. 범죄자... 깡패들 그런 거를 뽑았다고 그래요.’라고 이야기하였다.

H) At around 2001, Nonparty 29, who was the captain of ○○ Military Station, ○○ Military Station, based on w.kh.co. r and 40 parts of the w.m. “S. co. m.”). As to the training of ○○ Military Unit, all recruited trainees were included by the information personnel. The method was selected by the members of the ○○ Military Station as the interference with the ○○ Military Station. There was no one person who was the middle floor of the training center or the high-class telecom. They were from the lower floor of the lower floor constituting our society. There was no basis to believe that Nonparty 29, who was the captain of the ○○ Military Station, was guilty. They were no more than 10% of 10% of the 10% of the 10% of the 10% of the 10% of the 10% of the 10% of the 10% of the 100s of the 100s of the 20s of the 20s of the 20s.

I) On the other hand, the original author's reading room of the motion picture of this case on the coast guard room was "the people of the same wife were on board the coast guard room along with them. The people of the same wife were fluored at the same fluoral impression, and there was a lot of people with the knife country and correspondence. In light of the fluorial color, there were both the death penalty and the number of arms, as well as the back fluor immediately combined with the two. Nonparty 15 was the same. Nonparty 15 left the people. The applicants fluor, and soldiers left the strus once in accordance with the instructions of the leader. One fluorous fluor, and one fluorial fluor, a man, a robbery, a robbery, a fluor, a change in the current status, and a self-support group, all of whom were the cancers of society."

2) Stoptop

According to the above facts, with regard to the status of training soldiers, such as the National Assembly's meeting minutes, media reports, high-ranking officials' statements, etc., concerning the status of training soldiers, such as “the number of special crimes or crimes committed under the control of the air force,” “military special crimes,” “the number of crimes committed in prison or in prison,” “the number of military units from prison or in prison,” and “a criminal law person,” and “a person who committed a crime, or a person who was killed in prison,” respectively, were included in the article written on the basis of Nonparty 28’s statement. In addition, this article written on the basis of Nonparty 29’s statement, Nonparty 29 “the fluor of the lower floor constituting our society,” and written on the basis of Nonparty 29’s statement, it appears that “the fluoric book of the film of this case, as well as the fluoric book of the movie of this case, is basically written on the ground that the contents of the fluoric book of this case are identical with each of this case.”

6. As the Defendants did not know the facts that the Defendant had been aware of the fact at the time of producing the instant film, it appears that there were no other way to verify the facts other than the above 3-year film contents, and that there were 0-year film contents with respect to the Defendant’s non-indicted 1’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 3’s non-indicted 1’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 1’s non-indicted 3’s non-indicted 3’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 1’s non-indicted 3’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 3’s personal information.

이는 설령 이 사건 영화에서 훈련병들 전원을 사형수, 무기수 또는 중범죄를 저지른 재소자들로 표현한 것이라고 한정적으로 보더라도 마찬가지여서, 이 사건 영화 제작 당시 실미도 사건에 관하여 존재하던 자료들 중 소외 28, 29의 글( 소외 29는 훈련병들이 우리 사회를 구성하는 하층 밑바닥 출신일 뿐 죄수는 아니며 전원 민간인들로 구성되었다고 기술하여 다른 자료들과 가장 반대되는 내용을 썼다.)과 소설 실미도(이는 기본적으로 문학적 상상력에 의하여 창작된 것이다.)를 제외한 국회회의록, 언론보도, 고위공직자의 진술 등 각종 공적인 자료에는 실제 훈련병들에 대하여 앞서 본 바와 같이 묘사하고 있는데, ① 소외 29, 28이 훈련병들을 직접 접촉하였었고 그 글에 구체적·개별적 사례가 언급되어 있다는 이유만으로 진실성이 확실히 담보된다고 하기는 어려운 점{ 소외 29, 28의 글은 실미도 사건이 있은 지 20년 내지 30년 후에 쓰인 것으로, 소외 28의 글이 게재된 후에도 주간동아와 문화방송은 훈련병들에 대하여 사형수나 무기수로 표현하였고, 소외 29는 이 사건 영화 개봉 이후에 다른 언론사들과 가진 인터뷰에서 훈련병들 중 30～40%는 강도 또는 깡패로 전과가 있었다고 말하기도 하였으며, 더욱이 피고들은 이 사건 영화를 제작할 당시에 소외 29 개인에 대하여 신뢰할 수 없는 사람이라는 판단을 가지고 있었다고 주장한다. 원고들은 피고들과 이 사건 영화의 주연배우들이 실제로 소외 29의 글을 참조하였다는 점을 주요하게 거론하나, 그러한 사정만으로는 피고들이 위 글에 드러난 실미도 사건의 전체적인 윤곽 이외에 훈련병들의 출신성분 등 세부적인 묘사까지도 역사적 진실로 받아들였다고 보기는 어렵다. 한편, 소외 33은 생존훈련병 중 1명을 교도소에서 만나서 들은 이야기를 토대로 소설 실미도를 구상하였는데, 이 사건 영화의 개봉 이후인 2004. 2. 21. “실미도 사건 총정리 1”이라는 제목으로 인터넷에 ‘제가 취재한 모든 자료와 인터뷰는 훈련병이 사형수, 아니 적어도 교도소 출신인 것이 틀림없더군요. 국회속기록(국방내무연석회의록), 국내외의 엄청나게 많은 언론매체, 소외 30 장군 회고록, 소외 31 국방장관 회고록, 소외 27 회고록, 격동 삼십년, 한국현대사, 소외 28씨의 신동아 수기 등등 실미도 실자가 들어있는 모든 문서... 소외 22 공군참모총장, 소외 32 육군참모총장(국회 국방위원장 실미도진상조사단장), 소외 23 대간첩 대책본부장, 소외 30 인천지구 사단장, 신분을 밝히지 않기로 약속한 전직 중앙정보부 대령 외 군인 여러 명... 소외 25 군산시장(당시 국회의원) 소외 34, 35 위원, 소외 36 위원 비서관 등등의 정치인... 당시 경향신문 사회부 수석기자 소외 37 등등 언론인... 어쩌면 그렇게 하나도 빠짐없이 한결같이 훈련병들이 사형수나 무기수 출신의 죄수라고... 확실하게 증언을 하던지요...’라는 내용의 글을 올리기도 하였다(을 제3호증)}, ② 실체가 명확히 밝혀지지 아니한 역사적 사실을 바탕으로 상업영화를 제작할 경우 일반적으로 기본되는 사실관계에 작가와 감독의 문학적 상상력을 토대로 인물과 이야기를 그리게 되는 점(이 경우 통상 적시된 사실의 중요 부분이 전체적으로 진실과 합치되면 족하고 세부에 있어 약간의 차이가 있거나 다소의 윤색·과장이 있다고 하여 허위라고 단정할 수 없다.), ③ 실미도 사건과 같이 역사적으로 미궁에 빠진 사건에 관하여는 여러 가지 가설에 기한 검토가 있을 수 있고 이는 필연적으로 관련자에 대한 명예훼손이 수반되게 되는데, 이러한 경우 그 가설이 진실이라고 믿을 상당한 이유가 없다는 이유로 모두 불법행위가 성립한다면 역사의 연구는 있을 수 없게 되고 경우에 따라서는 일반적으로 알려진 사실에 대한 반론의 제기도 어렵게 되는 점(더욱이 개인의 사적 사실이 아니라 역사적 의미를 갖는 중대한 공적 사실인 실미도 사건을 재조명하면서 다소의 추측과 과장이 가미되었더라도 그에 대한 제재는 상당히 완화되어야 할 것이고, 나아가 비록 그 진실성이 입증되지 않거나 진실성의 확인을 위한 노력이 완전하지 않더라도, 악의적이거나 현저히 상당성을 잃은 내용이 아닌 한, 어느 정도 합리적인 근거만 있으면 위법성을 인정할 수 없다고 볼 수도 있을 것이다.), ④ 피고들에게 실질적인 사실 확인 작업을 기대하기 어려운 점 등 앞서 피고들에게 명예훼손에 대한 고의·과실이 없다고 판단한 부분에서 본 여러 사정들을 두루 감안하여 보면, 위 상반되는 자료들 중 공적인 자료들을 신뢰하여 이를 토대로 영화를 제작한 피고들을 탓할 수는 없다 할 것이다.

(C) Sub-decisions

Therefore, the argument that the Defendants damaged the honor of the deceased or the plaintiffs by expressing the deceased in the film of this case as murder or death penalty is without merit.

(2) The portion that expressed as a notarialist

(A) Specific film content pointed out by the plaintiffs

In the film of this case, the booms three times the face of the training team, a North Korean military personnel. ① The training team Nonparty 38 arrested a female mar who was raped by Nonparty 38, and embling it with the ropes, and booms the “satisf” while other training soldiers are subject to physical punishment (one hour and six minutes after the display time), ② other training soldiers immediately after the death of Nonparty 38, enter the military team, enter the training team, and then part of the training team called “satf,” as if the training team fices in the comfortable atmosphere (one hour and ten minutes after the display time). ③ The training team Nonparty 19 who was on a bus in the course of entering Seoul, started the “satf,” and all other training soldiers described that all other training soldiers are ficed (one hour and six minutes after the display time).

(B) Stopto;

In a case where a description of facts about a person or a case can be evaluated as a description of a fact or a case that actually existed in the person from the viewpoint of the general public, in a film with a real character modeled for the person, it may be a defamation against the person. However, if the description is merely for the formation of stories or the extreme effect, and if the general public does not accept it as a description of fact in accordance with the commonism and method, it shall not be defamation.

Therefore, it should be viewed as belonging to the area of freedom of creation of a film producer in principle, such as allowing the appearing person to singing a specific singing or inserting a sound effect on a specific page for the development of the film and the extreme effect. However, it should be subject to defamation exceptionally only when it comes to the fact or the description of the idea concerning a specific person in the form of stories or the extreme effect.

살피건대, ○○부대에서는 원활한 북한침투를 위하여 훈련과정에서 훈련병들에게 ‘김일성 장군의 노래’와 같은 북한 군가를 가르치고 이를 부르도록 한 사실은 당사자들 사이에 다툼이 없는바, 비록 원고들 주장과 같이 망인들이 ‘적기가’를 배우거나 부른 사실이 없다고 하더라도, ① 훈련병들이 북파공작을 목적으로 한 특수부대원들이었고 그러한 목적하에서 북한 군가를 배워 알고 있었던 점, ② 이 사건 영화에서 훈련병들이 부르는 노래가 북한 군가인 ‘적기가’라는 것을 표시한 바가 없어서 일반 관객의 입장에서도 위 노래가 북한 군가임을 바로 알기는 어려웠던 것으로 보이는 점, ③ 달리 훈련병들이 북한체제에 대하여 우호적인 모습을 보이는 장면은 없는 점, ④ 이 사건 영화에서 훈련병들은 용공주의자가 아니라 오히려 그 반대되는 모습으로, 즉 부여된 임무를 수행한 후 이 사회에서 떳떳하게 살기를 원하는 모습으로 그려지고 있는 점(이는 이 영화의 마지막 부분에서 위에서 본 바와 같이 훈련병들이 ‘적기가’를 부르는 데 대하여 버스에 타고 있던 노인 승객이 ‘이상한 노래 부르고 군인들과 싸우면서 무장공비가 아니라면 대체 댁을 뭐하는 사람들이오?’라고 묻자, 소외 15가 ‘국가와 민족을 위해 목숨 바쳐 김일성 목을 따고 주석궁을 폭파하라. 이것이 너희의 임무이다!’라고 절규하는 장면에서 명확히 확인된다.), ⑤ 이 사건 영화를 본 관객들은 훈련병들에 대한 경멸이나 혐오의 감정보다는 대체로 이들에 대한 추모의 감정을 드러내고 있는 점, ⑥ 영화에 삽입된 특정한 노래나 음향효과가 적절하거나 불가피하였는지 여부는 법원의 판단 대상이 아닌 점 등의 사정을 종합하면 보면, 이 사건 영화에서 훈련병들이 ‘적기가’를 부르는 장면을 삽입한 것은 명예훼손의 대상인 사실의 묘사에 해당하지 않거나 망인들 또는 원고들의 명예를 훼손한 행위에 해당하지 않는다 할 것이다.

(3) As to the caption and publicity of motion pictures

(A) Facts of recognition

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence 12-1, 2, 13-1 through 4, Gap evidence 14-1 through 8, Gap evidence 15, Eul evidence 16-1 through 5, Eul evidence 6, and Eul evidence 6.

1) Contents of the captioned caption of the motion picture of this case

At the time when the film of this case was shown in the domestic film center, the caption "Empiced ○○ unit" (hereinafter referred to as "original caption") was shown as follows: "The film of this case is the film about the actual ○ unit established in 1968, and the film of this case is not related to the past or the current North Korea Empic unit and the North Korea Empician."

2) Specific contents of the advertisement and publicity

In the case of an official homepage operated by the Defendants from the time when the film of this case was opened from the domestic film theater to the time after the closure, the Defendants separately set the item of “welve” that is separate from Synopis, DNAr, Probr, probr, “welve,” which is based on the premise that the film of this case is a synopis, “welve,” and “welve,” which is written in the form of eight newspaper articles regarding the case in the actual city. The contents include that “training soldiers were the bottom class of society, including those who already were sentenced to death penalty or who are employed in life or who are employed in prison.” All kinds of punishment cancellation of the publication of the operation and the cancellation of criminal records, etc., which include that “Ilves will undergo de facto training on condition that they are guaranteed a new life by the government.”

At the time of showing the film of this case from the domestic film theater, the Defendants advertised newspapers containing the following contents: “The truth that concealed 32 years,” “the truth that hidden 32 years,” “the December 2003, and “the truth that concealed 32 years. There was no name. There was no reason for the existence. There was no reason for the existence of any reason.” “I might change any gals to the truth room,” and “I would like to change any force of the truth.”

In the case of “SIDO” attached to DNA Synopsis (SIDO) manufactured by the Defendants around July 2004, the Defendants stated the same contents as “the actual event” along with the title “the cancellation of the publication of the death penalty and the cancellation of the remaining-free flapsing flaps,” which is separate from “Synopis” under the premise that the Defendants are dead, as well as the title “the actual event” in the item pertaining to “About Fact” under the premise that the Defendants are dead. The cover of the attached object is indicated as “the absence of any name.................” There was no reason to look at the attached object.” The truth was concealed for 32 years.”

The outer packaging of the video tapes that the Defendants started to manufacture and sell around July 2004 had no . there was no .... There was no reason to do so. The fact that the Defendants had no reason to do so was concealed for 32 years, i.e., the 32-year back truth. The headline refers to the headline, and the 111 million spectators,” etc. are printed.

(B) Stopto;

However, in the case of ○○ Military Training Team, only the content that the origin or situation setting of ○○ Military Training Team trainees is irrelevant to other “the North Korea unit,” and there is room to accept that only the establishment of the origin or situation of ○ Military Training Team trainees, which are recommended by the film of this case, is consistent with the actual facts. In addition, the overall content of the advertisement and publicity of the film of this case is “the truth” of the film of this case, and the attachment of official website and dbrid dypt was actively specific contents (in particular, “training soldiers are already sentenced to death penalty or life imprisonment or inmates were the bottom class of society including society.” All kinds of punishment and cancellation of criminal records, etc. of the publication of operations, which puts emphasis on the fact-finding of ○ Military Training Team training under the condition that they are guaranteed a new life by the government, and accordingly, it is not clear that the result of the advertisement of this case would cause damage to the general person, and that it would cause damage to the reputation of the past.

However, solely on such concerns, the establishment of tort against the advertisement and publicity of the film production company should not be readily acknowledged. In commercial films, the elements of which are the elements of adequate harmony and choice between historical facts and dynamics, the contents of the film should not be considered as truth, and should be understood to the effect that all the contents of the film were true, as a whole, and should be understood to the effect that the facts verified in harmony with dynamics were reflected to the maximum extent possible (this publicity method does not deviate from the general publicity practices of commercial movies based on historical facts). Furthermore, on the basis of facts revealed even at the time of producing the film, if the film producer believed the contents of the film production to be true, and there are reasonable grounds to believe such act, the film producer shall not be held liable for defamation.

In the context of the caption and publicity of the motion picture of this case, the most problematic issue is that the contents of the motion picture of this case, other than the fact that the contents of the motion picture of this case are true, may be mistaken as true (the contents of publicity do not include any contents other than the contents described in the motion picture). As long as it is determined that the Defendants, including the above part, did not constitute defamation against the deceased or the plaintiffs, it is difficult to hold the Defendants liable for tort due to defamation merely based on the caption and publicity itself.

However, since the opening of the motion picture of this case, citizens' interest in actual cases increases, and some of the facts were revealed about the recruitment process of the deceased of this case, which resulted in a self-esteem of the plaintiffs after the commencement of the motion picture of this case, such as the caption and publicity of the motion picture of this case. Accordingly, the defendants have been aware of the fact that the motion picture of this case was produced and sold as of the date of closing argument at the trial of this case as of the date of the commencement of the motion picture of this case as 1968 and ○○ unit was located. The detailed situation or expression of the motion picture of this case depends on gramological history. Accordingly, since the production of the motion picture of this case, it was revealed that there was no evidence and lack of official information disclosure at the time of the production of the motion picture of this case, there were some other historical parts in the process or other establishment of the promotional materials related to the motion picture of this case, which were produced and sold after the opening of the motion picture of this case (the ○○ unit is known to the majority and its members after the entrance of this case.

(4) The theory of lawsuit

In the production, screening and publicity of the film of this case, it cannot be deemed that the Defendants expressed the recruitment process or origin of training soldiers, expressed that the exercise soldiers are fit, and publicize the film of this case to the truth. Therefore, the Plaintiffs’ claim for consolation money does not constitute tort that defames the deceased of this case or the Plaintiffs. Therefore, the remainder of the claim for consolation money is without merit.

C. Determination as to the claim for prohibition such as screening the motion picture of this case

In a case where the deceased's or the plaintiffs' personality rights are seriously damaged or distorted due to the motion picture of this case, as seen in the above paragraph, if necessary to protect human dignity and value, the plaintiffs, who are their surviving families, may seek a prohibition of screening the motion picture of this case with the same contents as the purport of the claim on the basis of infringement of their personality rights.

However, in examining whether a film modeled with an actual person’s personality right as in the instant film, as long as time has elapsed, it may not be easy to confirm the truth due to objective materials that can verify historical truth, and the extent of protection of the freedom of creation or art in historical cases rather than the personality right of the decedent or his/her surviving family members may be relatively more severe (see Supreme Court Decision 97Da19038, Feb. 27, 1998, etc.). Therefore, considering various circumstances, such as the certainty and credibility of various materials based on the film production basis, and the relatively easy confirmation of the specific and substantial facts of historical cases, it is necessary to determine whether the film producer violated the personality right in light of the following: (a) the content of the film producer’s personal right directly and indirectly infringed upon the victim’s personality right through objective and reasonable materials or grounds (see Supreme Court Decision 97Da19038, Feb. 27, 198; 2008Da264, Oct. 26, 1998).

As seen above, the part on which the deceased expressed as a prudent does not constitute a description of facts subject to defamation or an act that defames the deceased or the plaintiffs. As such, this part cannot be seen as infringing on the deceased’s or the plaintiffs’ personality rights. However, as seen above, the Defendants’ act of describing the deceased’s recruitment process or origin as murder or death penalty and indicating it in the caption that it is true may damage the deceased’s or the plaintiffs’ reputation. As such, there seems to be room for allowing the Plaintiffs to seek prohibition of screening, etc. of the film with the same content as indicated in the claim in order to protect the personality rights infringed upon by defamation. However, if the film of this case, which is an artistic creative work, includes the fact of defamation, as seen above, it is not immediately possible to seek removal of that part, but also limited to the case where the core contents of the deceased’s personality rights were seriously damaged due to such fact, as seen above, the contents of the film production process or content of the film production, degree of its intent or damage to the deceased’s personality rights, as seen in light of the Plaintiffs’s personality rights as seen or content of defamation or damage.

4. Conclusion

Therefore, it is reasonable to dismiss all of the claims of the plaintiffs since all of the claims of this case are without merit. Since the judgment of the court of first instance is just in its conclusion, the plaintiffs' appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges in the appellate trial (Presiding Judge) Kim Jong-soo