Where suspension of execution is recognized for a judgment on the counterargument report;

Article 10 of the Constitution providing for the right to request a counterargument report, Article 17 of the Constitution providing for the guarantee of human dignity and value and the right to pursue happiness, Article 21 (1) of the Constitution providing for the freedom of privacy and the freedom of press and publication, and Article 21 (4) providing for the limitation and responsibility for the freedom of press and publication. The contents of the original report do not require falsity, and furthermore, the contents of the counterargument report does not necessarily require proof that it is true. Accordingly, even if the contents of the counterargument report are false, the risk that should be assumed in light of the purport of recognizing the right to request a counterargument report, and where it is proved that the counterargument report should have been dismissed as a result of deliberation in the procedure of a trial accepting the right to request a counterargument report, the contents of the judgment of revocation shall be reported, and where it is established a system that orders compensation for expenses required for the counterargument report and the judgment of revocation, the suspension of execution of the right to request a counterargument report shall be exceptionally recognized only in exceptional cases where there are new evidence on the existence of the grounds for refusal.

Articles 16, 26, and 28 of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports, Article 4(1) of the Rules of the Trial on Cases including Request for Corrective Measures, etc., Article 309 of the Civil Execution Act, Articles 10, 17, and 21 of the Constitution

Supreme Court Decision 85Da12840 Decided January 28, 1986 (Gong1986, 417), Supreme Court Decision 90Da25468 Decided January 15, 1991 (Gong1991, 744), Supreme Court Decision 96Da4098 Decided February 24, 1998 (Gong198Sang, 842), Supreme Court Decision 99Da12840 Decided February 25, 2000 (Gong200Sang, 806), Supreme Court Decision 2004Da50747 Decided November 23, 2006 (Gong207Sang, 13)

Special Appellant (Attorney Ansan-chul et al., Counsel for the defendant-appellant)

other party corporation

Seoul Central District Court Order 2008Kaga6270 dated August 27, 2008

The special appeal is dismissed.

The grounds of special appeal are examined.

1. On the second ground of appeal

First, where the press violated a specific person's personality right, it should be given prompt, reasonable, and equal means of defense to the injured person. In particular, it is appropriate and consistent with the principle of equity to secure the opportunity to defend the victim through the media itself which has the same effect as the content of attack. Second, the press can unilaterally make a correct judgment rather than depending on information unilaterally collected and supplied under time constraints, it is recognized to the purport that guaranteeing the other party's opportunity to defend the opposite opinion has an important meaning for finding the truth and forming a correct public opinion (see, e.g., Constitutional Court Decisions 89HunMa165, Sept. 16, 1991; 95HunBa25, Apr. 25, 1996; 200Hun-Ba16, Apr. 16, 1996; 30, Jan. 16, 196; 2005Hun-Ba4, Apr. 25, 199; 196, etc.).

As such, since the right to request a counterargument report goes beyond a mere subjective right at the same time as it is based on the Constitution, its realization should be ensured as much as possible. In this regard, the right to request a counterargument report is not a right to request a correction report in accordance with the truth, but a right to demand a report on the original report as to the contents of the victim’s assertion. Therefore, the contents of the original report are false (see, e.g., Supreme Court Decisions 85Meu1973, Jan. 28, 198; 96Da4098, Feb. 24, 1998; 9Da12840, Feb. 25, 2000; 99Da12840, Feb. 15, 2000). Accordingly, the contents of the counterargument report need not be proved to be true (see Supreme Court Decision 90Da25468, Jan. 15, 1991; 2005Da147406, Feb. 207, 2006.

However, the media also has the freedom of the press as a fundamental right pursuant to Article 21 of the Constitution. The imposition of the duty of a counterargument report instead of whether the content of the report is true, which directly limits the freedom of editing by the media, and at the same time, indirectly chilling the activities of the media, thereby restricting the freedom of the media, including the freedom of the press. Accordingly, the claim for objection can not be avoided that there exists a conflict between the freedom of the press. The conflict between the conflicting two constitutional interests should be resolved through the boundary definition that can be achieved optimally by seeking a harmonious method so that all conflicting interests can achieve their function and effects to the maximum extent (see Supreme Court Decision 2004Da50747, Nov. 23, 2006).

Article 26(6) of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports (hereinafter “ Press Arbitration Act”) provides that a trial shall be conducted in accordance with the procedures for provisional injunction under the Civil Execution Act with respect to a request for a corrective statement, etc. including a counterargument report, and Article 26(7) of the said Act provides that matters necessary for the trial shall be prescribed by the Supreme Court Regulations, and Article 4(1) of the said Rules (hereinafter “Rules”) provides that the suspension of the execution of a judgment on a request for a corrective statement, etc. by the Supreme Court shall comply with the procedures provided for in Article

As seen earlier, the right to request a counterargument report has spread to the constitutional request, such as Article 10 of the Constitution providing for the dignity and value of human beings and the right to pursue happiness, Article 17 of the Constitution providing for the secrecy and freedom of privacy, Article 21(1) of the Constitution providing for the freedom of press and publication, and Article 21(4) providing for the limit of and responsibility for the freedom of press and publication, and the contents of the original report do not require any falsity, and further, the contents of the counterargument report does not necessarily require proof that the truth is true. Accordingly, the risk of being borne in light of the purport of recognizing the right to request a counterargument report is the danger that inevitably takes place, and where it is proved that the counterargument report should have been dismissed as a result of deliberation in the procedure of a trial accepting the claim for a counterargument report, the contents of the decision of revocation shall be reported, and where there is a system that orders compensation for expenses incurred in the counterargument report and the judgment revoking the counterargument report shall be exceptionally acknowledged only in exceptional cases where there are new evidence regarding the existence of the grounds for refusal.

However, considering that there exists a conflict between the press’s freedom of press, it is necessary to permit suspension of execution, if there are such special circumstances as above. Thus, it cannot be said that the suspension of execution of judgment on a request for a corrective statement, etc. under Article 4(1) of the Rule is against the Constitution and the Act on Press Arbitration. The assertion by a special appellant cannot be accepted.

2. As to the first and third grounds for the special appeal

Article 449(1) of the Civil Procedure Act provides, “Special Appeal may be made to the Supreme Court only on the ground that there exists a violation of the Constitution that affected the judgment, or that there is an unreasonable determination as to the violation of the Constitution or a statute that is the premise of the judgment.” Thus, the mere assertion that there is a violation of the Act that affected the judgment does not constitute a legitimate special appeal (see, e.g., Supreme Court Order 2003Da136, Jun. 25, 2004; Supreme Court Order 2004Da168, Apr. 18, 2006; Supreme Court Order 2007Da18, Jan. 24, 2008).

Article 10 of the Constitution that provides for the right to pursue happiness and human dignity and value, Article 17 of the Constitution that provides for the right to privacy and freedom of press and publication, Article 21(1) of the Constitution that provides for the freedom of press and publication, and Article 21(4) that provides for the limitation of and responsibility for the freedom of press and publication, is erroneous in the order of the court below that accepted the application for the suspension of execution, notwithstanding the absence of a specific explanation as to the obvious circumstances that should suspend the execution of the judgment of accepting the counterargument report of this case, such as the absence of the requirements for counterargument report or the discovery of new evidence as to the existence of the grounds for refusal, it is unreasonable to accept the application for the suspension of execution, and thus, it is merely an argument that the interpretation of the requirements for the suspension of execution as to the judgment of counterargument report and the fact-finding as to the existence of such requirements has been wrong. Accordingly, such a ground does not constitute a special ground under Article 49(1) of the Civil Procedure Act,

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)