[1] The method of determining whether an expression of critical opinion about a political person or a public official, etc. constitutes a tort

[2] In a case where Party A, who was a member of the National Assembly, criticizes Party B, which was the head of Incheon Metropolitan City Mayor at the time, announced a letter of name containing “Sacheon-gu Sacheon-do Sacheon-do Sacheon-do Sacheon-do Sacheon-do Sacheon-si’s 46 Sacheon-do Sacheon-si’s Sacheon-do,” and Party C claimed consolation money for infringement of personal rights by the aforementioned expressive act, the case holding that the lower court erred by misapprehending the legal principles as to the establishment of tort caused by expression of opinions, in light of all circumstances, although it is difficult to recognize that Party A expressed Party C’s above name as “Sacheon-gu’s symbol” as an excessively insulting and disavated personal attack,

[1] In a case where an expressive act has expressed critical opinions against another person, if the form, content, etc. of such expressive act falls under an insulting and dissatisfy personal attack or an act of publishing distorted facts going beyond a certain degree of exaggeration about another person’s personal affairs, thereby infringing on one’s personal right, such act may be deemed as tort going beyond the bounds of expression of opinion.

On the other hand, matters of public interest, such as political parties and public officials, should be extensively disclosed and verified due to their social influence, etc. Therefore, insofar as the critical expression about it does not reach the extent that it has maliciously or substantially lost reasonableness, it does not readily mean that it constitutes tort or is legally liable. Furthermore, as a member of the National Assembly, who is a representative of the nation, is granted a wide range of authority regarding legislation and national control, and is granted exemption exemption exemption exemption from his/her duties so that he/she can properly perform his/her duties, criticism on the activities in his/her public sector should be more broadly broadly widened.

In determining whether a tort is established due to expression of opinion, not only the content and form of the relevant expressive act but also the circumstances where the expressive act was committed shall be considered.

[2] In a case where Party A, who was a member of the National Assembly, criticizes Party B at the time of the Incheon Metropolitan City Mayor’s name stating “Is the name “Is that is a member of the Journal 46 Ethal Madon Madon Byung’s symbol in the clean sea area,” and Byung claims consolation money for infringement of personal rights by the above expressive act, the case holding that the court below’s determination that the term “Is North Korea symbol” in the above name constitutes an insulting speech that was used for the purpose of “Isponing the North Korea unsponised”, but it is hard to readily acknowledge that Party A’s name or political idea as a member of the National Assembly, emphasizing the general situation of North Korea’s military discipline or threat of North Korea’s military affairs, and emphasizing that Party A’s activities or political ideology were to attract critical public opinions about Party B’s residents of the region of Incheon Metropolitan City through this, and thus, it is hard to recognize that Party A was a member of the National Assembly’s name or political attack in the public domain’s area.

[1] Article 751 of the Civil Act / [2] Article 751 of the Civil Act

[1] Supreme Court Decision 2005Da65494 Decided April 9, 2009 (Gong2009Sang, 608) Supreme Court Decision 2012Da19734 Decided August 20, 2014 (Gong2014Ha, 1780)

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

Defendant (Law Firm Initial, Attorneys Lee Dong-name et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Na2011862 decided July 31, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case overview and key issue

On July 30, 2013, the defendant criticizes the Nonparty, who was the Mayor of Incheon Metropolitan City at the time of July 30, 2013, and announced the name "the ○○ National Assembly member with the symbol of Sejongbuk-do, where the confusion of 46 people in the Yancheon-gu, Incheon Metropolitan City, was divingd"

The Supreme Court's scope of adjudication is a claim for consolation money on the ground of infringement of personal rights due to the above expressive act, and the issue of this case is whether the above expressive act of the defendant exceeded the limit of expression of opinion and constitutes tort by constituting an insulting and dissatising personal attack against the plaintiff.

2. Whether the tort caused by expression of opinions is constituted;

A. In a case where an expressive act has expressed critical opinions against another person, if the form, content, etc. of such expressive act falls under an insulting and dissatisfy personal attack or an act of publishing distorted facts going beyond a certain degree of exaggeration as to another person’s personal affairs, thereby infringing on such personal rights, such act may constitute tort beyond the bounds of expression of opinion (see, e.g., Supreme Court Decision 2005Da65494, Apr. 9, 2009).

Meanwhile, a matter of public interest, such as a political person or a public official’s speech or relation in the public domain of public figures, should be widely disclosed and verified through their social influence, etc. Therefore, insofar as the critical expression about it does not reach the extent that it is malicious or considerably unreasonable, it should not be readily deemed that it constitutes tort or is legally liable. Furthermore, a member of the National Assembly, who is a representative of the nation, is granted a wide range of authority regarding legislation and national control, and is granted a special exemption from liability to ensure that he/she properly performs his/her duties (see Supreme Court Decision 2012Da19734, Aug. 20, 2014).

In determining the establishment of a tort caused by an expression of opinion, not only the content and form of the relevant expressive act but also the circumstances where the expressive act was committed shall be considered.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

1) 원고는 2012. 4. 11. 실시된 제19대 국회의원 총선거에서 △△△△당 소속 비례대표로 입후보하여 당선되었고, 피고는 위 국회의원 총선거에서 인천 □구·◇구·☆☆군 지역구의 ▽▽▽당 소속 후보로 입후보하여 당선되었다. 이 사건 표현행위 당시 원고와 피고는 모두 국회의원이었다.

2) 인천광역시 산하 ◎◎◎◎플랫폼은 2013. 7. 27. 인천 ☆☆군 ◁◁도에서 2011년부터 추진해온 ▷▷▷▷ 프로젝트의 3년차 행사로 ‘정전 60주년 기념 2013 ▷▷▷▷프로젝트’ 행사를 개최하였다. 위 행사에는 당시 문화체육관광부장관, 인천광역시장 소외인과 △△△△당 소속 의원 등이 참석하였는데, 원고도 위 행사에 참석하였다.

3) On July 30, 2013, the Defendant criticizes the Nonparty, which was the Mayor of Incheon Metropolitan City at the time of July 30, 2013, and announced a name statement containing the content of “the ○○ National Assembly member, which is the symbol of the subordinate North Korea,” in the clean sea area.

4) 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 각각 게재하였다.

C. Examining these facts in light of the legal principles as seen earlier, it is difficult to recognize that the Defendant’s expression of the Plaintiff as “pro-North Korea symbol” in the instant name constitutes an excessively insulting and anti-defensive personal attack and exceeded the bounds of expression of opinion as an expression of opinion. The reasons are as follows.

1) The Defendant used the term “pro-North Korea symbol” in comparison with the fact that the 46th sons in the astronomic’s name of this case used the term “pro-North Korea symbol” in comparison with the fact that the 46th sons made a sacrifice for national security. The term “pro-North Korea symbol” in the name of this case appears to have used the term “pro-North Korea symbol” in the name of this case as “the representative figure pro-North Korea pro-North Korea without any intention,” and it can be deemed as an insulting

2) However, the Defendant, as a member of the National Assembly, criticizes the Plaintiff’s activities or political ideology in the public sphere by emphasizing the military confrontation situation with North Korea or the military threat of North Korea as a member of the National Assembly, and thereby, seeks to attract critical public opinions to the Nonparty, the head of Incheon Metropolitan City, Incheon Metropolitan City, of local residents. The instant expressive act alone is difficult to readily conclude that the Defendant, as a member of the National Assembly, has maliciously insulting and destroyed personal attack to the Plaintiff.

3) Furthermore, as a member of the National Assembly at the time, the Plaintiff was able to sufficiently anticipate criticism of his public activities or political ideology and public policy. In addition, in response to the Defendant’s criticism of the Plaintiff through the instant name statement, the Plaintiff may be deemed to have been given sufficient opportunity for the Plaintiff to dissipe or dissipate it, and to receive evaluation from the public through the political attack between the two parties.

D. Nevertheless, the lower court determined that the Defendant’s name named the Plaintiff as “pro-North Korea symbol” in light of the following: (a) the Plaintiff’s name in this case’s criticism mainly intended to criticize the Mayor of Incheon Metropolitan City at the time when it was not the Plaintiff; and (b) the Plaintiff’s public position as a member of the National Assembly, even if considering the Plaintiff’s public position, etc., it constitutes a tort beyond the permissible limit as an expression of opinion.

In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of tort caused by expression of opinion, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)