Plaintiff (Dongsung Law Firm, Attorneys Lee this-financial et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Hyun-soo et al., Counsel for the defendant-appellant)

July 10, 2014

Seoul Southern District Court Decision 2013Kahap104616 Decided March 25, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 200,000,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Scope of the judgment of this court;

The court of first instance dismissed the plaintiff's claim for consolation money on the ground of the plaintiff's defamation, and partly accepted the claim for consolation money on the ground of infringement of the plaintiff's personality right added to the conjunctive claim. Since only the defendant appealed, the scope of this court's judgment is limited to the claim for consolation money

2. Basic facts

가. 원고는 1989. 6.경 평양에서 개최된 ‘제♡♡차 ●●●●●●●●’에 ▲▲▲▲▲▲▲▲협의회 대표로 참가하기 위해 북한에 밀입국한 사실로 국가보안법위반죄로 형사처벌을 받았다가 사면·복권된 후, 2012. 4. 11. 실시된 제19대 국회의원 총선거 당시 △△△△당(현재의 ‘■■■■■■■’) 소속 비례대표로 입후보하여 당선된 국회의원이고, 피고는 위 제19대 국회의원 총선거에서 인천 □구·◇구·☆☆군 지역구의 ▽▽▽당 소속 후보로 입후보하여 당선된 국회의원이다.

나. 원고는 인천광역시 산하 ◎◎◎◎플랫폼이 2011년부터 추진해온 인천▷▷▷▷ 프로젝트의 3년차 행사로 2013. 7. 27. 인천 ☆☆군 ◁◁면에 속한 ◁◁도에서 개최된 ‘정전 60주년 기념 2013 ▷▷▷▷프로젝트’ 행사에 참석하였는데, 위 행사에는 당시 문화체육관광부장관과 인천광역시장 및 △△△△당 소속 의원 등이 참석하였다. 이에 대하여 피고는 2013. 7. 30. 소외인 당시 인천광역시장을 비판하면서 “천안함 46용사의 영혼이 잠들어 있는 백령도 청정해역에 종북의 상징인 ○ 모 국회의원”이라는 내용이 포함된 성명서(이하 ‘이 사건 성명서’라 한다. 성명서 전문은 별지 목록 기재 참조)를 발표하였다.

다. 인천일보, 뉴데일리 인터넷신문 등의 언론매체는 2013. 7. 31. 이 사건 성명서 내용을 기사화하여 보도하면서, “천안함 46용사의 영혼이 잠들어 있는 백령도 청정해역에 종북의 상징인 ○ 모 국회의원을 대동해 행사를 치르는 ♤ 시장을 과연 인천시장이라고 할 수 있는가”라는 부분을 발췌하여 기사 내용으로 각 게재하였다.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 4-1 to 3, the purport of the whole pleadings

3. The parties' assertion

A. The plaintiff

The defendant, without any basis, refers to the plaintiff as "pro-North Korea symbol" through the letter of name of this case, and let the plaintiff be recognized as the "pro-North Korea Council member" who helps the plaintiff feit and praises the idea of the subject of North Korea, such as Kim Il-sung and Kim Jong-Un, thereby seriously infringing on the plaintiff's personality right due to such an destructive attack. As such, the defendant is liable to pay consolation money of KRW 200,000,000 as compensation for damages for mental suffering suffered by the plaintiff, and damages for delay.

B. Defendant

The name of this case was merely intended to criticize the Non-Party market, not to criticize the Plaintiff. In light of the overall flow, context, and social tendency, the expression “pro-North Korea symbol” is a political investigation emphasizing that the Plaintiff is widely known to the public as a member of the National Assembly with a North-friendly tendency. Since the Plaintiff’s public activities and political ideology as a public figure are related to the Plaintiff’s public activities and political ideology, the interest to guarantee the Defendant’s freedom of political expression rather than the Plaintiff’s personality right is greater, it cannot be said that the Plaintiff’s personality right was infringed by the said expression.

In addition, even if the expression "pro-North Korea" in the name of this case can be interpreted to mean that it denies the unity of the Republic of Korea and new idea of North Korea, the plaintiff must always be verified as a member of the National Assembly, and it is desirable that the name of this case be subject to adjudication by the National Assembly and the people rather than subject to adjudication by the court, as part of the defendant's parliamentary activities as a member of the National Assembly. Therefore, it is unreasonable to hold the defendant legally liable for infringement on personal rights

4. Determination

(a) Occurrence of liability for damages;

(1) Whether the victim is specified

In order to establish tort caused by infringement of personal rights, the victim must be specified, but it does not necessarily require a person's name or organization's name to be specified at the time of such specification. Even if a person's name is not indicated or a person's name is used only in two letters or social, if it is possible to find out that the expression becomes a victim when considering the surrounding circumstances and the contents of the expression, it shall be deemed that the victim was specified (see Supreme Court Decision 2000Da50213, May 10, 2002).

위 기초사실에서 본 바와 같이 이 사건 성명서 중 해당 부분이 “○ 모 국회의원”이라고 되어 있기는 하나, 당시 제19대 국회의원 중 ○씨 성을 가진 사람은 원고를 포함하여 2인뿐으로 그 중 원고만이 ◁◁도에서 개최된 정전 60주년 기념 ▷▷▷▷프로젝트 행사에 참석하였던 점, 원고는 공적 인물인 정치인이자 전국구 비례대표로 선출된 국회의원으로서 남북문제가 거론될 때마다 언론에 자주 노출되어 왔으므로 그 인지도가 결코 낮다고 할 수 없는 점, 특히 원고가 1989. 6.경 당시 정부 방침에 반하여 평양에서 개최된 ‘제♡♡차 ●●●●●●●●’에 참가하기 위해 무단 방북하고 돌아온 후 국가보안법위반죄로 처벌받은 사실은 일반인들에게도 비교적 널리 알려져 있는 점 등을 고려하면, 위 성명서를 접하는 이들로서는 “○ 모 국회의원”이라는 표현이 원고를 가리키는 것으로 쉽게 알아차릴 수 있었다고 봄이 상당하므로 그 피해자는 원고로 특정되었다고 할 것이다.

(2) Whether personal rights are infringed

(A) Relevant legal principles

Even if an expression of opinion is not indicated, if the form and content of an expression constitutes an insulting and definite personal attack or an act of publishing distorted facts going beyond a certain degree of exaggeration regarding another’s personal affairs, thereby infringing on that personality right, it may constitute a separate type of tort from defamation (see Supreme Court Decisions 2001Da84480, Mar. 25, 2003; 2005Da65494, Apr. 9, 2009).

However, in a case where any expression used in a notice, etc. is related to a political ideology of a public figure, if the expression is related to a political ideology of a public figure, the State and social influence of the public figure is large, and the political ideology of the public figure affects the reputation of the State, and thus, the political ideology of the public figure is more thoroughly disclosed and verified, and any question or suspicion thereof should be allowed to be raised as much as possible. However, even if the filing of a matter of public figure should be widely permitted, it should not be allowed to gather maliciously without supporting specific circumstances, and even if it is based on specific circumstances, the method of expression should be selected on the basis of respecting the character of the other party, and even if there is any matter of criticism, the insult cannot be allowed (see Supreme Court Decision 200Da37524, 37531, Jan. 22, 2002).

(B) In the instant case:

① Since the Plaintiff’s political ideology as a member of the National Assembly cannot be said to have a significant national and social influence, the Plaintiff’s political ideology should be disclosed and verified, and when there is probability of any adverse suspicion, a wide range of issues shall be permitted. Meanwhile, the Defendant is a member of the National Assembly elected by one citizen as a member of the people’s representative, and has the freedom of expression and political responsibility to raise legitimate problems and criticism of the Plaintiff’s political ideology, which is a public figure. However, in light of the national and social influence that the Defendant is a member of the National Assembly, the Defendant also has a public duty to faithfully verify and sound criticism forms in performing the above duties should be more emphasized than that of the general private person. In publicly criticism of a member of the National Assembly who has a political opinion different from one’s own, it should be presented reasonable grounds through a sufficient review to prevent malicious criticism or conspiracy, and the Defendant should use a clearly expressed expression within the extent that does not impair the other party’s personality.

However, inasmuch as the expression “pro-North Korea” used in the name of this case can be used in various ways from “persons who have a critical position on the policies of the Republic of Korea” to “an anti-state or anti-social force that denies the identity and consistency of the Republic of Korea,” it cannot be entirely ruled out that there was infringement of personal rights due to a pro-North Korea’s personal attack, solely on the ground that the expression was used in the expression “pro-North Korea,” the determination of whether the expression constitutes “pro-North Korea” should be made by comprehensively taking into account all the circumstances, such as the front and rear context, subject and object of use, circumstances, and place of use, etc. of the expression “pro-North Korea’s policies.”

② 위 기초사실에 의하면, 피고는 국회의원으로서, 인천광역시 산하 ◎◎◎◎플랫폼이 2013. 7. 27. ◁◁도에서 개최한 ‘정전 60주년 기념 2013 ▷▷▷▷프로젝트’ 행사에 참석한 원고를 “천안함 46용사의 영혼이 잠들어 있는 백령도 청정해역에 종북의 상징인 ○ 모 국회의원”이라고 지칭하였는바, 위 성명서에 사용된 ‘종북’이라는 말은 ‘천안함 46용사의 영혼이 잠들어 있는 백령도 청정해역’과 대비되는 등 그 전후 맥락에 비추어 대북 친화적 성향을 일컫는 ‘친북’과 구별되어 대체로 ‘김일성·김정일 등 북한의 주체사상을 추종하면서 대한민국의 정체성을 부정한다’는 의미로 사용된 것으로 보인다. 그런데 현행 국가보안법에서는 그와 같은 의미의 종북행위를 엄격히 규제하여 형사처벌의 대상으로 삼고 있을 뿐만 아니라 남북이 군사대치 중인 분단국가로서의 현실까지 고려하여 볼 때, 위와 같은 의미에서의 ‘종북’은 대북·통일 정책에 관한 단순한 입장 표명을 넘어 좌우 이념에 따른 국가의 정체성과 존립, 나아가 국민 개개인의 존재양식과도 연관된 기본적 국가관에 관련된 것으로서 이와 같은 표현이 현재 우리나라의 현실에서 가지는 부정적이고 치명적인 의미에 비추어 이를 대북 친화적 성향에 관한 다소 과격한 표현이라거나 단순히 수사적인 과장이라고만 보기는 어렵다.

Furthermore, in the name statement of this case, the defendant expressed the plaintiff who became a member of the National Assembly after being subject to criminal punishment due to his or her death or rehabilitation, and did not present any material or basis as to the basic facts supporting the specific circumstances that justify such evaluation. However, if the plaintiff becomes aware that he or she is a member of the specific North Korea pattern of the meaning as mentioned above, he or she would be subject to recognition and evaluation as a member of the National Assembly in the anti-state and anti-social power, his or her qualification and quality as a member of the National Assembly may be considerably reduced, and the activities as a politician may not be considerably reduced, and the possibility that he or she may be perceived as a dangerous existence in the nation depending on the individual position of the people can not be ruled out. In addition, the defendant appears to have claimed that "the plaintiff is a member of the National Assembly of the Republic of Korea, which is a self-reflucing sea area of the Republic of Korea, as an anti-state and anti-social force."

③ On the other hand, the name of this case is mainly aimed at criticism of the Incheon Metropolitan City Mayor at the time when the Plaintiff is not the Plaintiff, and even when considering the public status as the Plaintiff and the Defendant’s National Assembly member, in light of the meaning of the expression “pro-North Korea” used by the Defendant in the name of this case, the expression that the Defendant referred the Plaintiff constitutes an insulting and de facto personal attack against the Plaintiff by deviating from the permitted limit as an expression of opinion.

Ultimately, the defendant is liable for compensating the plaintiff for mental damage caused by the infringement of the plaintiff's personality right through the letter of name of this case ( long as the above expressions against the plaintiff are deemed tort, the defendant's assertion that such expressions should be guaranteed more than the personality right as a freedom of political expression, or they should be protected as they are within the defendant's legitimate scope of parliamentary activities.)

(b) Scope of damages;

In full view of all the circumstances revealed in the arguments in this case, such as the Plaintiff and the Defendant’s status and status, the developments leading up to the Defendant’s presentation of the instant name, the weight of the expressions relevant to the Plaintiff in the instant name, the contents of the expressions and their social meaning, and the possibility of political and social disadvantages that may result in the Plaintiff’s emotional distress and the future, etc., the amount of consolation money that the Defendant is liable to compensate the Plaintiff shall be set at KRW 2,00,00

C. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay at each rate of 5% per annum under the Civil Act until March 25, 2014, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the date of publication of the instant statement of name, which is a tort, and the date of publication of the instant statement of name, and it is evident that the Defendant, as requested by the Plaintiff, is the day after August 21, 2013, the delivery date of a copy of the instant complaint of this case, which is the day after August 21, 2013.

5. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is justified with this conclusion, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Dong-woo (Presiding Judge) (Presiding Justice)