The meaning of “fact” under Article 307(1) of the Criminal Act / Whether the crime of defamation under Article 307(1) of the Criminal Act is established either where the alleged fact is true or false, or where the alleged fact is false (affirmative); and whether the crime of defamation under Article 307(1) is established where the alleged fact is false or the actor does not have awareness of falsity (affirmative)

According to the structure, text, and text of Articles 307(1) and 307(2) and 310 of the Criminal Act, “facts” under Article 307(1) refer not to “material facts” opposite to “material facts” under Article 307(2), but to the concept of “material opinions”, the object of which is value judgment or evaluation. Therefore, defamation under Article 307(1) may be established either where the alleged facts are true or false, or where the alleged facts are false. In particular, even if the alleged facts are false, the crime of defamation under Article 307(2) may be established not only where the actor does not have awareness of the falsity, but also where the alleged facts are false, the crime of defamation under Article 307(1) is established. While the statutory punishment under Article 307(1) is imprisonment with prison labor for not more than two years, the statutory punishment under Article 307(2) is not more than five years, the perpetrator’s subjective perception of the alleged facts is not only subjectively false, but also subjectively false facts.

Articles 307 and 310 of the Criminal Act

Defendant

Prosecutor

Attorney Kim Hyun-hoon

Daegu District Court Decision 2015No3877 Decided October 19, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 307 of the Criminal Act provides that “a person who defames a person by openly pointing out a fact” under Article 307(1) and Article 307(2) provides that “a person who defames another by openly pointing out a false fact” shall each be punished. Therefore, in order to constitute a crime of defamation, defamation or defamation under Article 307(1) or (2) requires “a statement of fact.” Here, “a statement of fact” refers to a report or statement of a specific past or present fact, which is based on an “statement of opinion” whose content is a value judgment or evaluation, and the content of the statement is admissible by evidence (see, e.g., Supreme Court Decision 96Do1741, Nov. 22, 196).

However, Article 310 of the Criminal Act provides, “If the facts alleged in Article 307(1) are true and solely for the public interest, the act shall not be punishable.” Exclusion from the application of defamation under Article 307(2) of the Act from the application of the Act, and that the illegality may be avoided only when the facts alleged in the “statement of fact” under Article 307(1) of the Act are “the actual facts.”

According to the structure, language, and content of the above provision, “facts” under Article 307(1) does not refer to “material facts” that oppose the “material facts” under Article 307(2), but rather to the concept opposite to the “material facts” whose content is value judgment or assessment. Therefore, defamation under Article 307(1) may be established regardless of whether the alleged facts are true or false. In particular, even if the alleged facts are false, where the actor does not have awareness of the falsity, defamation under Article 307(1) may be established not only as the crime of defamation under Article 307(2), but also as the crime of defamation under Article 307(1) in a case where the alleged facts are false, but also as the statutory punishment under Article 307(2) is imprisonment with prison labor for not more than two years, etc., the mere objective fact that is alleged, but also the actor has a subjective perception of the falsity of the alleged facts.

Meanwhile, for the purpose of not punishing a person by openly pointing out facts, the act is related to the public interest in view of the objective fact, and an actor should have engaged in such act for the public interest, as well as to have committed an act for the sake of the public interest, and there is a reasonable ground to believe that the alleged fact is true or at least the actor believed the fact to be true, and to have believed the fact. Here, “actual fact” refers to a fact that is in conformity with objective facts in light of the overall purport of the content thereof. As such, even if there is a little difference or somewhat exaggerated expression, the term “public interest” includes not only the fact that is widely related to the interests of the State, society, and other general public, but also the interest and interest of a particular social group or its entire members. Whether the alleged fact relates to the public interest or not shall be determined by comparing and comparing the contents and nature of the alleged fact, the scope of the other party against whom the fact was published, the degree of infringement of reputation that may be damaged or damaged by such expression with the intent of the actor, etc., and if the motive or purpose of the offender is incidental to the public interest.

2. According to the records, the prosecutor initially brought a prosecution against the facts charged of this case as defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, but on the 9th trial day of the first instance court, applied for changes in the indictment due to defamation by publicly alleging facts under Article 307(1) of the Criminal Act, and permitted it by the court to do so, and thus,

For the reasons indicated in its holding, the lower court reversed the first instance judgment and rendered a not guilty verdict on the ground that it is difficult to view that the appeal of this case sent by the Defendant under the name of the Nonindicted Party was consistent with objective facts or that the Defendant was false in its overall purport, and that it was about public interest in light of the content of the appeal and the sender and the other party, etc., and thus, the Defendant ought to be deemed to have no criminal intent of defamation or to be dismissed by Article 310 of the

Of the Prosecutor’s grounds of appeal on this point, the Prosecutor’s assertion that the contents of the appeal in this case were not true is nothing more than disputing the fact-finding that belongs to the exclusive authority of the lower court and does not constitute legitimate grounds of appeal. In addition, in light of the relevant legal principles, the lower court’s determination that the contents of the appeal in this case are true or true, and its distribution constitutes a public interest, thereby falling under Article 310 of the Criminal Act, is justifiable. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the grounds for excluding illegality in the crime of defamation, contrary to what is alleged in the grounds of appeal. Therefore, the part of the lower court’s determination that the Defendant did not have criminal intent on the grounds that the contents of the appeal in this case are consistent with the objective facts or that the Defendant was aware of the fact that the contents are false, in particular, on the grounds that the factual facts under Article 307(1) of the Criminal Act are not true or false, does not affect the conclusion of the judgment.

3. Accordingly, the appeal shall be dismissed by the assent of all participating Justices. It is so decided as per Disposition.

Justices Kwon Soon-il (Presiding Justice)