(영문) 서울중앙지방법원 2013.5.9.선고 2013노619 판결

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive. The prosecutor's appeal on the acquittal portion shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant (misunderstanding of facts and misunderstanding of legal principles as to the part concerning oil crime)

(1) All comments posted by the Defendant are not false.

(A) Although the Defendant posted a notice to the effect that “The fishermen, after the New-Japan Agreement on Nov. 28, 1998, she had engaged in wald but the fishermen would have been the victims at the time,” the lower court found the Defendant guilty of this part on the grounds that the Defendant posted it to the effect that “the victims would have sent the fishing vessels to North Korea free of charge without any condition.”

(B) At the time, the victim did not designate “the land” as a prohibited rice, but this part was treated as not only the minor part posted by the Defendant, but also the measures taken by the victim against Dokdo at the time in light of the overall purport and context of this article.

(C) From the past, there were many victims of acts in concert with North Korea, and even at the time of the president’s holding office, North Korea provided astronomical funds and materials to North Korea. While North Korea developed nuclear and material, at the time of the victim’s speaking, “the victim shall be held liable for the development of nuclear power of North Korea without any ability to develop nuclear power, and North Korea shall be held responsible for the development of nuclear power.” Since North Korea’s nuclear and material left in the Republic of Korea, it would endanger national security of Korea by leaving the Republic of Korea. In fact, the victims attempted to transfer to North Korea. As such, it is pointed out that the victim attempted to transfer to North Korea.

(D) The 5/18 Gwangju-related writing and the content of the 5/18 Gwangju-related paper published under the title of the 5/18th G and the highest friendly bomb is "5.18 of the substance of the beautiful boosting fraud", and the book published in Japan, "the Imbon Day (K)", which was published by the North Korean defectors. The number of North Korean defectors was confirmed to be more than 90% by the defendant, and four of the victims mentioned in the above Japanese book and eight of the facts charged are revealed to be fact, and all of the four of the facts charged shall be deemed to be fact.

(2) At the time, the Defendant did not have any perception that it was false because the writing posted by the Defendant had considerable reasons to believe that it was true.

(3) The Defendant posted the above notice for the proper historical evaluation of the former president, who is a historical and public figure. As such, whether its content is false or not is determined by the court’s free expression from the public point of view, rather than by the expert’s free expression, it should be permitted as related to the public interest.

(b) Prosecutors;

(1) Legal principles (as to the acquittal part)

This part of this part of the defendant posted by the reader may be perceived that the victim got unfastened to the Japanese Embassy without knowledge, and that the victim unilaterally transferred the sovereignty, fishery right, etc. of Dokdo for Japan, which constitutes a statement of fact that is not an ambiguous expression as an investigative exaggeration, because it is possible to recognize that the victim unilaterally transferred to Japan.

(2) Unreasonable sentencing

The sentencing of the court below (two years of suspended sentence in August) is too unhued and unfair.

2. Judgment on the misconception of facts and misapprehension of legal principles by the defendant

A. The portion "At that time the President had proposed the fishing vessels to North Korea as if they were going."

(1) Summary of this part of the facts charged

The Defendant signed the New Agreement on November 28, 199, as the title "G: G: 198, and on November 28, 190, as stated in the facts of the crime in the judgment of the court below, and as a result, two-boats of more than 3,00 fishing vessels lost their jobs, and the vessel and fishing gear manufacturers were frighted. The fishermen were wreed, but they were wreed to North Korea by the President at the time."

However, at around November 1998, the victim did not want to move to North Korea, as the two-boatd vessels were to move to North Korea at the time of the conclusion of the agreement between the Republic of Korea and Japan on fisheries.

As such, the Defendant damaged the reputation of the victim who was the deceased by openly pointing out false facts.

(2) The judgment of the court below

The court below found the defendant guilty of this part of the facts charged on the ground that the victim did not have had the reduced fishing vessels free of charge without any condition.

(3) Judgment of the court below

The court below correctly adopted and examined the following circumstances, i.e., ① the conclusion of the above one-day agreement and the adoption of the consent thereto by the National Assembly, likely to cause damage to fishermen in various media, followed the resistance of fishermen, and the Minister of Oceans and Fisheries at the time, the Minister of Oceans and Fisheries at the time means that "it is planned to reduce the number of 3,00 fishing vessels by 204, and the number of 600 vessels is already reduced, and it is possible to consider how to contribute to North Korea," and the Prime Minister also actively supported the establishment of a fisheries partnership, etc. with North Korea by private organizations such as fisheries cooperatives, etc. in relation to the measures for the reduction of vessels." At that time, the government of the Republic of Korea actively reviewed the measures to provide the fishing vessels that are reduced by the above one-day agreement to North Korea, and ② the defendant's words "the President did not know that the victim did not have any different meaning from the above," as a whole, it appears that it was difficult for the President of the Republic of Korea at the time of Korea.

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, but the court below found the defendant guilty of this part of the facts charged on a different premise. Thus, the court below erred by misapprehending the facts and affecting the conclusion of the judgment.

Therefore, this part of the defendant's argument is justified.

B. "G"? This person is a good human body of the Republic of Korea as soon as it orders the Republic of Korea to transfer to North Korea. He sent only 5,000 to I. It is more bad human body of the Republic of Korea than H.

(1) Summary of this part of the facts charged

The Defendant, as the title of “G and the highest friendly pathm - Gwangju Citizens Organisms?” written and posted a letter “G,” which reads “G,” which reads the Republic of Korea to North Korea, promptly pit . H. H. 5,000, sent only 5,000 to the Republic of Korea. In this context, the Defendant sent 5,000 Republic of Korea to the Republic of Korea.”

However, there was no fact that the victim transferred the Republic of Korea to North Korea, and there was no fact that 50,000 people were sent to North Korea by I.

As such, the Defendant damaged the reputation of the victim who was the deceased by openly pointing out false facts.

(2) The judgment of the court below

The court below found the defendant guilty of this part of the facts charged by taking full account of the evidence presented in its judgment.

(3) Judgment of the court below

The term "statement of fact" in the crime of defamation refers to a report or statement of a specific past or current fact in time and space, and the contents of the statement are able to be proved by evidence, and in distinguishing whether the statement is a fact or an opinion, the ordinary meaning and usage of a language, possibility of proof, the context in which the speech in question is used, the social situation in which the expression was made, etc., shall be considered (see Supreme Court Decision 97Do2956, Mar. 24, 1998). Also, the term "statement of fact" means the expression of a specific fact that needs to indicate a specific fact that may undermine social evaluation and does not constitute a simple abstract judgment or an expression of a satisfic appraisal, not a specific fact.

However, this part of the notice seems to be merely an abstract judgment or an investigative exaggeration to the effect that the victim did not express the method or content of the victim's transfer to North Korea or sending 50,000 million won to North Korea, and thus, the victim did not unilaterally favorable to North Korea, rather than an expression of specific facts.

Therefore, although this part of the facts charged constitute a crime, the court below found the defendant guilty of this part of the facts charged on a different premise. Thus, the court below erred by misapprehending the legal principles on this part, which affected the conclusion of the judgment.

Therefore, this part of the defendant's assertion is justified.

C. Whether the remainder of the comments are false or false, and whether there are reasonable grounds to believe that the Defendant is true

(1) Since the crime of defamation against a deceased person under Article 308 of the Criminal Act is protected by the social and historical assessment of the deceased person and the alleged fact constitutes the element of a crime, it should have been recognized that it was false as the content of the actor’s intentional act. As such, the existence of such subjective perception ought to be determined on a normative basis by taking into account various circumstances, such as the content of the alleged fact, the certainty of the material, and the method of expression, so long as it is difficult to know or prove it outside of the country due to its nature (see, e.g., Supreme Court Decisions 83Do1520, Oct. 9, 2001; 2001Do3594, Oct. 22, 2005; 2005Do2627, Oct. 22, 2005).

(2) 이 사건의 경우, 원심이 적법하게 채택하여 조사한 증거들에 의하여 알 수 있는 다음과 같은 사정들 즉, ① 당시 피해자는 '독도는 우리 땅'이라는 노래를 금지곡으로 지정한 사실과 독도 방문을 금지 시킨 사실이 없음에도 피고인은 명시적으로 피해자가 위 노래를 금지곡으로 지정하였다고 게시한 점(피고인은 당시 피해자가 위 한일협정으로 독도를 우리 땅에서 배제시키고 방송 3사의 새천년 해돋이 독도 행사 방송을 못하게 하였으며, 독도 주변 수역에서 고기를 잡지 못하게 하는 조치 등을 취하는 상황에서 사실상 위 노래는 금지된 곡이었다고 주장하나, 어떤 글의 내용이 타인의 명예를 훼손하는지의 여부는 일반 독자가 글을 접하는 통상의 방법을 전제로 그 글의 전체적인 취지와의 연관 하에서 글의 객관적 내용, 사용된 어휘의 통상적인 의미, 문구의 연결 방법 등을 종합적으로 고려하여 그 글이 독자에게 주는 전체적인 인상을 기준으로 판단하여야 할 것인데, 당시 헌법재판소도 위 한일협정은 어업에 관한 협정으로 독도가 중간수역에 속해 있다 할지라도 독도의 영유권 문제나 영해 문제는 직접적인 관련을 가지지 않아 헌법상 영토조항에 위반된다고 할 수 없다고 결정하였고, 피고인이 게시한 글에는 피고인이 주장하는 위와 같은 부분은 전혀 표현되어 있지 않아 일반의 독자들이 그 내용을 접함에 있어서는 단순하게 피해자가 위 노래를 금지곡으로 지정하였다고 그릇 인식하게 됨으로써 피해자에 대한 부정적 생각을 가지게 되어 피해자의 명예가 훼손될 것으로 보임), ② 피고인은 "탈북자들의 수기에 의하면 피해자가 'J과 짜고 북한 특수군을 광주로 보냈다 합니다"라고 게시하였으나, 피고인이 주장하는 탈북자들의 수기라는 "화려한 사기극의 실체 5·18"의 출처나 증언자들이 불분명하고, 그 내용이 검증되지 않았을 뿐만 아니라 그 내용도 대부분 북한 특수군의 개입에 관한 것일 뿐 피해자와 J의 공모에 관한 구체적 진술을 담고 있지 않으며, 이를 뒷받침할 객관적인 근거도 없는 점, ③ 위 게시물에는 피해자가 J과 짜고 북한 특수군을 광주로 보냈고, 이들에 의해 광주 시민들이 학살을 당했다는 내용이 포함되어 있는데, 이는 현재까지 이와 관련한 사법적 판단(피해자의 내란음모죄 등에 대한 재심 사건에서의 무죄 판결, P 등 신군부 세력에 대한 사형 선고 판결 등의 형사 판결이나 관련 손해배상 사건 등의 민사 판결 등)이나 5·18민주유공자예우에 관한 법률의 제정·시행 과정 등에서 5·18민주화운동에 관하여 밝혀진 사실과는 다른바, 피고인은 이러한 사법부와 입법부의 판단이나 그 과정에 밝혀진 사실은 모두 무시한 채 자신의 생각과 일치한다.는 이유로 마치 위 게시물이 사실인 것처럼 무분별하게 게시한 점, ④ 피고인은 위 "I 파멸의 날"이라는 책 내용을 인용하며 2000, 6, 13. [과 피해자의 차내 밀담이라고 게시하면서 그 첫머리에 "미 CIA는 양 L의 차내 밀담 90분간의 내용을 모든 수단을 동원해서 포착했다. 그 주된 내용은 아래와 같다"를 함께 게시하였는바, 위 책의 정확한 제목은 "예언서 정감록을 통해서 본 I 파멸의 날"이고, 저자도 머리말에서 이 책은 '음 양오행'과 '태양흑점의 증감'에서 이론을 구성한 'YMD 파동' 분석을 통한 I 개인의 미래운명을 밝혀 봄으로써 북한의 미래를 예측하고자 하는 것이라고 밝히고 있어 위 책은 사실에 관한 근거자료에 기초한 것이 아니라 일종의 예언서라는 점을 명백히 하고 있을 뿐만 아니라, 위 책에는 명백히 "미국 CIA는 양L의 차 안 밀담 내용을 모든 수단을 동원하여 파악했지만, 그 주된 추측 내용은 8개 항목을 골자로 하기에 이르렀다"(제 127면), "이것은 도청 등에 의한 것이 아니고 영상을 통한 독순술에 의해 구사한 것이 다"(제128면)라고 기재되어 있음에도 피고인은 "미 CIA가 차내 밀담의 내용을 모든 수단을 동원해서 포착했다"고 게시하여 마치 미국 CIA에 의하여 위 내용이 사실로 확인된 것처럼 게시한 점, ⑤ 피해자는 여러 언론과의 인터뷰 등을 통해 그 당시 나눈 대화는 별 다른 내용이 없었다고 밝히고 있음에도 피고인은 그 진위 여부를 확인하지 않은 채 위 책의 내용이 피고인의 생각과 일치한다는 이유로 추측에 불과한 내용을 마치 사실인 것처럼 게시한 점, 6) 공적 인물에 대한 역사적 사실이나 그의 정책, 행적에 대한 의혹의 제기나 건전한 비판은 폭넓게 허용되어야 하지만, 피고인이 게시한 글은 피해자의 행적이나 대북정책을 비판하는 것이라기보다는 피고인의 피해자에 대한 부정적 시각을 악의적이고, 현저히 상당성을 잃은 과격한 표현을 사용하여 피해자를 비방하고 있는 점, 그 밖에 피고인의 학력, 경력, 사회적 지위, 위 글의 게시 경위 및 게시한 홈폐이지의 다른 내용, 피고인의 범행 전력 등 제반 사정을 종합하여 보면, 피고인이 게시한 이 부분 글은 모두 허위 사실이고, 피고인은 이를 허위 사실이라고 인식하고서 게시하였다고 판단된다.

D. As the Defendant posted for the proper historical evaluation of the former president, who is a public figure, whether the content is false or not is revealed by the free expression of experts in the public sphere, not by the court's determination, but by the public interest, as it is related to the public interest, it should be permitted.

The following should also be taken into account: (a) in a case where the alleged fact is a historical fact after the lapse of time, the freedom of inquiry or expression of historical fact should be gradually protected rather than the reputation of the deceased; and (b) there is a limit to the objective data that can confirm the truth, and thus, it is not easy to confirm the truth. However, inasmuch as the freedom of expression is not absolute but limited to not infringing another person’s reputation or right, etc.; (c) when the protection of an individual’s reputation as a freedom of expression and personality right conflicts with each other, the method of adjusting the conflict should be determined by weighing and balancing the interests and values obtained from the freedom of expression and the interests and values achieved by the protection of the personality right, and the interests and values achieved by the protection of the personality right. In this regard, even if an expression is a comment on a public figure, if it is a content that defames another person’s reputation, the expression is solely related to the public interest and its purpose constitutes fair opinion or criticism; and (d) it is permissible in a case where the actor proves the authenticity of the content or its reasonable basis based on sufficient investigation and reasonable grounds.

However, in the case of this case, as seen above, since the contents of this part of the notices are contents that considerably undermine the victim's historical and social evaluation, the explanation of the authenticity of the contents of the notices should be more strict. In light of the aforementioned circumstances, not only the contents posted constitute false facts but also the details of the notice, malicious method, and purpose of slandering, this part of the notice is determined to have an emphasis on the victim's defamation on the grounds that it is different from the victim's belief or opinion, based on the victim's perception of aggressive or historical facts in the past and its sound criticism or evaluation, but also on the basis of the non-verification literature or the third party's unilateral statement that has not been verified, etc., and thus, this part of the Defendant's assertion is rejected.

3. Judgment on the misapprehension of the legal principle of prosecutor

A. The judgment of the court below

The lower court found the Defendant not guilty of this part of the charges on the ground that there is no room to deem that the part expressed on a simple basis is combined with other contents to indicate any historical fact, and there is no room to regard it as a statement of fact. The lower court acquitted the Defendant of this part of the charges on the ground that the content that “the victim saw the victim to go in the Japanese Embassy because he did so to the Japanese Embassy,” or “the victim did so to go to the Japanese Embassy,” or that “the victim did so to go to the Dondo” was an unfright attitude toward Japan by having other people know that

B. Judgment of the court below

In light of the records, a thorough examination of the evidence of this case reveals that the court below's determination of not guilty of this part of the facts charged based on the above judgment of the court below is just and acceptable, and even considering all circumstances asserted by the prosecutor as the grounds for appeal, it is difficult to regard this part of the evidence as a statement of specific facts, and therefore, it does not seem that there is an error of mistake of facts or misapprehension

Therefore, prosecutor's assertion is not accepted.

4. Conclusion

Therefore, the appeal against the acquittal portion by the prosecutor is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act, and the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is with merit. Thus, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the prosecutor's argument

【Discretionary Judgment】

The summary of the facts of the crime and evidence recognized by the court. The summary of the facts of the crime and the evidence of the court below are as follows: the facts of the crime of the court below's 4th "I would like to know to North Korea"; the facts of the 11th "this person will accept it as it is in accordance with Article 369 of the Criminal Procedure Act, since the facts of the court below's 4th "I would like to know to North Korea"; the facts of the 11th "from this point to 12, 13th "from this point to 30th" in the 29th "from the Republic of Korea to 32, 33th" in the 32th "Korea" to 32, 33th "Korea" in the 32th sentence to 32th "Korea".

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 308 of the Criminal Code, Selection of Imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act provides that the historical and social assessment or sound criticism of the former president’s behavior, political performance, or mistake is broadly recognized. However, since the crime of this case was committed for more than three months from the time of the death of the victim, it is not good that the crime of this case was committed by posting a malicious comment with the content of significantly damaging the victim’s historical and social assessment on the ground that it is different from the Defendant’s belief or opinion, and the Defendant committed the crime of this case even though he had the history of having been punished several times due to the crime of defamation, it is reasonable to punish the crime of this case strictly in light of the following:

On the other hand, however, the judgment of the court below which acquitted the defendant of some of the parts which the court below found guilty shall be determined as ordered by taking into account the defendant's age, character and conduct, environment, motive, means and consequence of the crime, circumstances after the crime, etc., and the sentencing conditions as shown in the present arguments and records.

The acquittal portion

The summary of this part of the facts charged is the same as that of paragraphs 2-A through (1) and 2-B (1) above. This constitutes a case where there is no evidence of a crime or no evidence of a crime as stated in paragraphs 2-A-3 and 2-B-3, and thus, a not-guilty verdict should be made pursuant to Article 325 of the Criminal Procedure Act, but as long as it is found guilty of the remainder of the facts charged in relation to such a crime, the judgment of innocence shall not be rendered separately.