[1] Responsibility for proof of the reason for excluding illegality of the crime of defamation, and whether Article 310-2 of the Criminal Procedure Act is applied (negative)

[2] The meaning of "the time of 'the time of 'the time of public interest' under Article 310 of the Criminal Code and its criteria

[1] In order for a person to lose reputation by openly pointing out a fact to be subject to punishment due to dismissal of illegality in accordance with Article 310 of the Criminal Act, the actor must prove that such act is true and solely pertaining to the public interest. However, such proof is not based on strict evidence with probative value, such as the requirement for conviction, which requires a judge to have a conviction to the extent that there is no room for doubt. In this case, there is no room for application of Article 310-2 of the Criminal Procedure Act, which prescribes the limitation on the admissibility of hearsay evidence.

[2] Article 310 of the Criminal Code provides that "when the publicly alleged facts relate to the public interest" refers to the publicly interest when objectively seen, and an actor also expresses such facts for the public interest. In such a case, whether the publicly alleged facts relate to the public interest shall be determined by comparing and considering all the circumstances as to the expression itself, such as the details of the publicly alleged facts in question, the scope of the counter-party to whom the relevant fact was published, and the method of expression, etc., and the degree of infringement of honor that may be damaged or damaged by the expression. If the main purpose or motive of the actor is for the public interest, the application of Article 310 of the Criminal Code shall not be excluded even if the main purpose or motive of the actor is incidental to other private interest purpose or motive.

[1] Article 307 (1) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995), Article 310 of the Criminal Code, Article 310-2 of the Criminal Procedure Act / [2] Article 310 of the Criminal Code

[1] [2] Supreme Court Decision 92Do3160 delivered on June 22, 1993 (Gong1993Ha, 218) / [1] Supreme Court Decision 85Da33828 delivered on October 11, 198 (Gong198, 1392), Supreme Court Decision 94Da33828 delivered on May 28, 1996 (Gong196Ha, 1973), Supreme Court Decision 95Da36329 delivered on October 11, 1996 (Gong196Ha, 3297) / [2] Supreme Court Decision 88Do899 delivered on February 14, 198 (Gong1989, 445), Supreme Court Decision 94Do9399 delivered on June 29, 193 (Gong1949, 1945) 94Do196399 delivered on June 19, 1993

Defendant 1 and two others

Prosecutor

Seoul District Court Decision 95No900 delivered on May 24, 1995

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

1. Regarding ground of appeal No. 1

In order for a person to be punished by publicly alleging a fact to defame him/her according to Article 310 of the Criminal Act, the actor must prove that his/her act constitutes a true fact solely for the public interest (see, e.g., Supreme Court Decisions 85Meu29, Oct. 11, 1988; 92Do3160, Jun. 22, 1993; 94Da33828, May 28, 1996; 94Da33828, May 28, 1996; etc.). Such proof does not require a judge to use strict evidence having probative value, which makes it difficult to doubt him/her as required for the conviction. Thus, Article 310-2 of the Criminal Procedure Act, which provides for the restriction on the admissibility of evidence for hearsay evidence, is not applicable to this case. It is justifiable and there is no error in the misapprehension of legal principles as to the theory of lawsuit in the court below.

2. Regarding ground of appeal No. 2

Article 310 of the Criminal Act provides that "when the publicly alleged facts relate to the public interest" and "when the publicly alleged facts relate to the public interest" refers to an objective point of view, and an actor also indicates the facts for the public interest. In this case, whether the alleged facts relate to the public interest or not shall be determined by comparing and considering all the circumstances pertaining to the expression itself, such as the specific contents of the publicly alleged facts, the scope of the counter-party to which the publication of the relevant facts was made, and the method of expression, and the degree of infringement of honor that may be damaged or damaged by the expression (see, e.g., Supreme Court Decisions 94Do237, Aug. 26, 1994; 94Do1942, Nov. 10, 195; 94Do309, Apr. 12, 1996; 200Do31983, Feb. 29, 196). 198).

According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, since the representative of the apartment reconstruction association including the defendants held a board of representatives and discussed the acts as stated in the judgment of the non-indicted victim who interfered with the promotion of the reconstruction project of the above association, the apartment area is disturbed due to the above non-indicted victim's acts of interference, and there is a risk that the above non-indicted victim's act of interference can be seen as harming the association's establishment even with the competent authority, and the association's establishment can be seen as a part of the association, so it is necessary for the residents to publicize the above fact and actively cooperate in the reconstruction project. Accordingly, the head of the association or the director of the above union prepared a printed article as stated in the facts charged in the name of the non-indicted, and distributed it to the residents. In this case, the main motive of the defendants' production and distribution of the above printed article seems to be for preventing the above acts of interference with the members of the association and the members of the association. Thus, the above opinion of the court below is justified in its conclusion that "the aforementioned inducement and distribution of the above inducement".

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

Justices Lee Yong-hun (Presiding Justice)