[1] The standard for determining whether a case constitutes “false facts” under Article 307(2) of the Criminal Act

[2] The meaning of "a statement of fact" in the crime of defamation and the method of determining such facts

[3] The case holding that the part of a wood company’s explanation that "I am on the part of a tree with "I am on the part of a tree" did not constitute "a statement of fact" as referred to in the crime of defamation

[4] In a case where a person was prosecuted for defamation due to false facts, whether the court's action of not guilty is unlawful even though it can be recognized ex officio without any amendment to the indictment (negative)

[1] Where determining whether a publicly alleged fact is a false fact in order to apply Article 307(2) of the Criminal Code, even if there exists a somewhat exaggerated expression that differs from the truth or that differs from the truth in detail when considering the overall purport of the alleged fact, if the important part is consistent with objective facts, it cannot be deemed as a false fact.

[2] In the crime of defamation, the term "statement of fact" refers to a report or statement of a specific past or present fact in time and space, and its contents can be proved by evidence, as a concept substitute for an expression of opinion, which is a value judgment or evaluation. In addition, when distinguishing whether a statement of determination is a fact or an opinion, it shall be determined by considering the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression at issue was used, and the social situation in which the expression was made.

[3] The case holding that the part of a wood company’s explanation that "I am am a part during the worship" did not constitute "a statement of fact" as referred to in the crime of defamation

[4] Among the facts charged of defamation by a false accusation under Article 307(2) of the Criminal Code, since the facts charged of defamation by a factual accusation under Article 307(1) include the facts charged of defamation by a factual accusation, in case where the facts alleged in the above false accusation are charged for defamation, if there is no proof as to the falsity, the court may, ex officio, recognize the crime of defamation by the above factual accusation without the amendment of the indictment, unless the court recognizes ex officio the facts alleged in the indictment within the scope recognized as identical to the facts charged. However, even if the court can recognize ex officio without the amendment of the indictment, if the facts alleged in the indictment are serious in comparison with the facts charged, and if the indictment is not punished for the reason that the indictment was not modified for the reason that the facts alleged in the indictment were serious, it does not constitute an unlawful act because the court did not recognize ex officio the facts.

[1] Article 307 (2) of the Criminal Code / [2] Article 307 (1) of the Criminal Code / [3] Article 307 (1) of the Criminal Code / [4] Article 307 (1) and (2) of the Criminal Code, Article 298 of the Criminal Procedure Act

[1] Supreme Court Decision 97Do158 delivered on October 9, 1998 (Gong1998Ha, 2715), Supreme Court Decision 99Do4757 delivered on February 25, 200 (Gong2000Sang, 906) / [2] Supreme Court Decision 97Do2956 delivered on March 24, 1998 (Gong1998Sang, 1248), Supreme Court Decision 2006Do2074 Delivered on December 14, 2007 / [4] Supreme Court Decision 90Do1229 Delivered on October 26, 1990 (Gong190, 2475), Supreme Court Decision 96Do2397 delivered on February 14, 1997

Defendant

Prosecutor

Attorneys Cho Jin-hun et al.

Seoul Western District Court Decision 2006No698 Decided January 23, 2007

The appeal is dismissed.

We examine the grounds of appeal.

1. Violation of the rules of evidence

In determining whether the alleged facts are false in order to apply Article 307(2) of the Criminal Act, if the material facts are consistent with objective facts in light of the overall purport of the alleged facts, it cannot be deemed that there is a false fact even if there is a little exaggerated expression (see Supreme Court Decision 9Do4757 delivered on February 25, 200).

According to the reasoning of the judgment of the court below, on May 11, 2005, the court below acquitted the defendant on the facts of this case that the defendant damaged his reputation by openly stating the false fact that "No. 1,200 students were the above university professors and pastors, who were the victims of the Korean Egymna Association (name omitted), were transferred to the memorial hall in 100 weeks from the Kgymna University Sym University (Seoul High School), and who were the victims of the Kgymnasium in the Kgymnasium, Non-Indicted 1 of the Kgymnasium Non-Indicted 1, the Kymnasium non-indicted 1, the Kymnasium non-indicted 1, who was the victims of the Kgymnasium in the Kgymnasium." It cannot be deemed that the above alleged facts were proved to the extent that there is no reasonable doubt."

In light of the records, in full view of all the circumstances, including the fact that the defendant, as alleged by the complainant, seems to have been aware of the overall purport of the above novels and the meaning of the above "the name" among the contents of the novels by the defendant, has not been mentioned separately in the contents of the novels, and that the defendant understood that the above "the name" was different from that of the previous novels, such as the main position of the previous novels, it cannot be readily concluded that the defendant publicly stated the fact that the complainant would have been able to practice the theory of mixing by the doctrine of the above "the name".

In addition, the court below cannot be deemed to have erred in violating the rules of evidence in rejecting the statement by the police of Nonindicted 2 that the first instance court adopted in its fact-finding and the written appraisal by Nonindicted 3 and Nonindicted 4 in light of other evidences. The prosecutor's appeal on this part is without merit.

2. Meritorious of legal principles

The term "statement of fact" in the crime of defamation refers to a report or statement of a specific past or present fact in time and space, and its contents can be proved by evidence, as a concept substitute for an expression of opinion the content of which is a value judgment or evaluation. The distinction between whether a statement of determination is a fact or an opinion should be made in consideration of the ordinary meaning and usage of language, possibility of proof, context in which the expression at issue was used, social situation in which the expression was made, etc. (Supreme Court Decision 97Do2956 delivered on March 24, 1998).

The court below decided that with respect to the part of “Non-Indicted 1 is a different group among the two groups, it is difficult to see that what doctrine is a common doctrine and which doctrine is in conflict with this is different depending on the concept evaluated by the majority of assembly members or believers who form a religious order, and that the defendant stated the fact. This decision of the court below is just in accordance with the above legal principles, and it can be understood that the above part is to supplement other part of the statement of fact, not an independent statement of false facts, as alleged by the prosecutor, even if it is understood that it is to supplement other part of the statement of fact, not an independent statement of false facts, as seen earlier, even if there is no proof that it is a false statement of fact, the result of the judgment of this case does not affect the conclusion of the judgment of this case. Accordingly, the appeal in this part

3. Points of incomplete hearing;

Of the facts charged of defamation by false accusation under Article 307(2) of the Criminal Act, since the facts charged of defamation by factual accusation are included in the facts charged of defamation by factual accusation under Article 307(1) of the same Act, in a case where the alleged facts are charged for defamation by the above false accusation, if there is no proof of false facts, the court may, ex officio, recognize the crime of defamation by the above factual presentation without the modification of the indictment’s indictment procedure, unless the court can ex officio recognize ex officio the criminal facts included in the facts charged within the scope recognized as identical to the facts charged: Provided, That even if the court can recognize ex officio without the modification of the indictment, if it does not punish the facts charged for the reason that the facts charged are serious in comparison with the facts charged, and if it does not punish them for the reason that the indictment was not modified, it cannot be viewed as unlawful because the court did not recognize ex officio the facts (see Supreme Court Decision 96Do2234, Feb. 14, 1997).

In light of the records, since the core of the facts charged in this case is that the defendant impairs the reputation of the complainant by expressing the "false facts", it is difficult to view that the failure to punish the defendant for the reason that there is no modification of indictment due to the serious criminal facts recognized in comparison with the criminal facts charged in this case is obviously contrary to justice and equity, and even in light of the fact that the submission of most psychological processes up to the original judgment and defense methods by the defendant was concentrated on the falsity, it cannot be deemed that ex officio determination of defamation by the above factual facts without changing the applicable provisions in the indictment does not cause any disadvantage to the defendant's exercise of his right to defense. Thus, it is difficult to view that the judgment below which acquitted the defendant without ex officio determination is erroneous.

In addition, the court's decision whether to request the prosecutor to amend the bill of indictment or not belongs to the discretion and it cannot be deemed illegal on the ground that the prosecutor did not clarify it (see Supreme Court Decision 9Do3003 delivered on December 24, 199). The appeal to the court below that there was an error in the incomplete hearing is without merit.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)