[사기미수·명예훼손·사자명예훼손][공2000.7.1.(109),1468]
[1] The meaning of public performance in the crime of defamation
[2] In a case where a reporter does not yet publish and report news coverage while publishing facts through a reporter (negative)
[1] A public performance, which is the constituent element of the crime of defamation, refers to a state in which many, unspecified persons can be recognized. Even if a fact was disseminated to one person individually, if there is a possibility of spreading it to many, unspecified persons, the public performance constitutes a public performance to a specific person, unless it satisfies the requirements of public performance, but there is no possibility of spreading it differently.
[2] In a case where a statement of fact is made to ordinary persons who are not ordinary reporters, it shall be made public from that time to the outside, so the possibility of dissemination shall be immediately determined. However, in a case where a statement of fact is made through a reporter, it shall be deemed that the publicly known fact should be published only when the report is made, and if the reporter does not report it after news gathering, it shall be deemed that there is no possibility of dissemination, and therefore, it shall be deemed that there is no performance.
[1] Article 307 of the Criminal Code / [2] Article 307 of the Criminal Code
[1] Supreme Court Decision 86Do556 delivered on September 23, 1986 (Gong1986, 2993) Supreme Court Decision 90Do1167 delivered on July 24, 1990 (Gong1990, 1834) Supreme Court Decision 91Do347 delivered on June 25, 1991 (Gong1991, 2069), Supreme Court Decision 92Do445 delivered on May 26, 1992 (Gong192, 2065), Supreme Court Decision 94Do1880 Delivered on September 30, 1994 (Gong194Ha, 2919), Supreme Court Decision 96Do1097 delivered on July 12, 1996 (Gong19698 decided Apr. 196, 199)
Defendant
Defendant and Prosecutor
Seoul District Court Decision 99No2448 delivered on November 30, 1999
All appeals are dismissed.
We examine the grounds of appeal.
1. As to the Defendant’s grounds of appeal (including the grounds of supplementary appeal)
In light of the records and records, although the defendant knew that he is not the deceased non-party 1's natural father but is not the deceased non-party 1's natural father, the defendant's family register was recorded as father's father's non-party 1's father's father's non-party 1's natural father's non-party 1's request for the payment of veterans' pension and the suspension of payment to the Seoul Regional Veterans Administration to the effect that he would request the victim's compensation to be paid to himself, and it can be recognized that he would change the priority order of the person who has rendered distinguished services to the State and make a request for the change of the order of payment of compensation and the payment of compensation to him. Thus, the defendant's crime of attempted fraud as stated by the court below can be sufficiently recognized.
Therefore, the appeal by the defendant to the effect that the judgment below contains an error of mistake of facts as alleged in the grounds of appeal cannot be accepted.
2. As to the Prosecutor’s Grounds of Appeal
Public performance, which is the constituent element of the crime of defamation, refers to the state in which an unspecified or multiple number of people can be recognized (see, e.g., Supreme Court Decision 91Do347, Jun. 25, 1991). Although spreading facts to one person individually, if there is a possibility of spreading them to an unspecified or many unspecified persons, the spread of facts to a specific person can lead to the public performance, unless it satisfies the requirements of public performance and it is unlikely to spread otherwise (see, e.g., Supreme Court Decisions 92Do445, May 26, 1992; 96Do1007, Jul. 12, 1996).
On the other hand, in a case where a statement of fact is made to an ordinary person who is not an ordinary reporter, since the fact alleged as an ordinary reporter is publicly announced, the possibility of dissemination should immediately be determined based on the possibility of dissemination. However, in a case where a statement of fact is made through a reporter, it shall be deemed that the publicly announced fact should be published only when the report is made, and if the reporter fails to report it after news gathering, it shall be deemed that there is no possibility of dissemination.
According to the records, the court below affirmed the judgment of the court of first instance which acquitted the defendant of the facts charged as to the defamation and defamation of the deceased and the deceased and the non-indicted 1 in the telephone interview with the reporters of the day-to-day interview, on the same purport as the facts charged concerning the defamation of this case and the defamation of the deceased and the deceased, but it can be acknowledged that the right leather did not publish and report such the defendant's statement. Thus, the court below's decision that affirmed the judgment of the court of first instance which acquitted the defendant of the facts charged as to the defamation of this case and the defamation of the deceased and the deceased in the same purport is acceptable. The prosecutor's appeal cannot be accepted.
3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Sung-sung (Presiding Justice)