[1] The meaning of public performance in the crime of defamation

[2] In a case where the public performance of defamation is acknowledged on the ground of the possibility of dissemination, the content of intent and the method of determining whether the act was intentional as a subjective element

[3] The scope of binding force of the judgment of reversal

[4] The case holding that the court below's discretion to newly find facts after remanding the case where the facts charged was modified after remand and it is no longer necessary to bind the judgment of reversal and return

[5] The method of stating the application of the law and the reason for judgment of conviction under Article 323(1) of the Criminal Procedure Act, where the law is applied without specifying the choice of punishment, and it does not clearly state whether the punishment is aggravated for a certain crime, whether it constitutes a violation of law which affected the judgment (negative with qualification)

[1] The elements of the crime of defamation refer to the state in which many, unspecified or unspecified persons can be recognized, and even if a statement of fact is made to one person, if there is a possibility of spreading it to an unspecified or unspecified person, the elements of public performance are satisfied

[2] In a case where the public performance of defamation is acknowledged on the ground of the possibility of spreading, dolusent intent is required as a subjective element of the constituent elements of the crime. Therefore, not only there is awareness of the possibility of spreading, but also there is an internal intent to allow the risk. Whether the actor is allowing the possibility of spreading should be confirmed from the standpoint of the actor, taking into account how to assess the possibility of spreading if the general public is based on specific circumstances, such as the form of the act that appears outside and the situation of the act.

[3] Article 8 of the Court Organization Act provides that "any decision at a trial of a higher court shall bind the lower court with respect to the case in question," and the latter part of Article 436 (2) of the Civil Procedure Act also provides that any factual and legal decision which the court of final appeal considers as the ground for reversal shall bind the lower court. Although the Criminal Procedure Act does not provide any corresponding express provision, the court of final appeal, which is based on the principle of law, may intervene with the legitimacy of the lower court's decision on fact-finding in accordance with Article 383 or 384 of the Criminal Procedure Act, may be limited to the court of final appeal which is based on the reasoning of the judgment of final appeal. In this case, the binding force of the judgment of final appeal shall be limited to the passive and unjust judgment of the lower

[4] The case holding that since the binding force of the judgment of the court below that found the guilty guilty of defamation by publication was only limited to the evidence examined by the court below prior to the remanding that the facts charged were erroneous in the judgment of the court below prior to the remanding of the case, and the facts charged of defamation by publication are not acknowledged, if the facts charged in this part of the case were to be changed to the facts charged of defamation under Article 307 (2) of the Criminal Act after remanding, the court below shall have discretion to newly find facts, and it is not necessary to further bind the judgment of the court below which reversed and remanded the case

[5] According to Article 323(1) of the Criminal Procedure Act, the reason for a judgment of conviction is to clearly state the facts to be a crime, the summary of evidence and the application of the law. In applying the law, there is a brack or listed ceremony centering on the appearance and the listing of the articles, but in any way, if a certain method or several defendants are involved in multiple crimes, what kind of law is applicable and what kind of facts are applicable should be specified in the case. Therefore, in applying the law in the reason for a judgment of conviction, if the statutory punishment is applied, and it is not clearly state the choice of punishment for each crime, but it is not clearly state which crime is selectively defined in the statutory punishment, but it does not specify which crime is aggravated while the punishment is aggravated. However, if it can be known that the decision of the court has been made by applying any law by specifying the type of punishment and its term of punishment, it does not constitute a violation of the law which affected the conclusion of the judgment.

[1] Article 307 of the Criminal Code / [2] Article 307 of the Criminal Code / [3] Article 8 of the Court Organization Act, Article 436 (2) of the Civil Procedure Act, Articles 383 and 384 of the Criminal Procedure Act / [4] Article 8 of the Court Organization Act, Article 436 (2) of the Civil Procedure Act, Articles 383 and 384 of the Criminal Procedure Act / [5] Articles 323 (1) and 383 subparagraph 1 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do5622 delivered on May 16, 200 (Gong2000Ha, 1468) / [3] Supreme Court Decision 84Do1379 delivered on September 11, 1984 (Gong1984, 1674) Supreme Court Decision 95Do830 delivered on December 10, 1996 (Gong1997Sang, 444), Supreme Court Decision 2001Do1314 delivered on February 26, 2003 (Gong203, 946) / [5] Supreme Court Decision 2000Do605 delivered on May 12, 200 (Gong200Ha, 1462)

Defendant

Defendant

Law Firm Barun Law, Attorney Jeong Ho-ho

Supreme Court Decision 2000Do3045 Delivered on June 28, 2002

Seoul District Court Decision 2002No6637 Delivered on December 30, 2003

The appeal is dismissed.

1. Determination as to defamation

A. The public performance, which is the constituent element of the crime of defamation, refers to the state in which many, unspecified or unspecified persons can be recognized, and even if one person expresses a fact, if there is a possibility of spreading it to many, unspecified or unspecified persons (see Supreme Court Decision 9Do5622, May 16, 200). If the public performance of the crime of defamation is acknowledged on the ground of the possibility of dissemination, it is necessary at least to have dolusence as a subjective element of the constituent element of the crime, and thus, it is necessary to have an intention not only to recognize the possibility of dissemination, but also to have an intention to deliberate to allow the risk. Whether the actor permitted the possibility of dissemination should be confirmed from the standpoint of the offender, taking into account how to assess the possibility of dissemination if the general public is based on specific circumstances, such as the form of the act that appears outside and the situation of the act.

In the same purport, the court below, based on the evidence adopted by the defendant, filed a complaint with the representative director 2 as of March 1996 to resolve the dispute between the non-indicted 1 corporation and the non-indicted 1 corporation, but it was ordered by the prosecutor's office on July 30, 1996 that the non-indicted 2 was suspected of fraud, and decided on July 30, 1996 to resolve the dispute between the non-indicted 2 and the non-indicted 3 who was affiliated with the National Assembly members at the National Assembly, by expressing the false facts as stated in its reasoning, and requesting the National Assembly members to explain the dispute situation and the process of the prosecutor's settlement, and to investigate the corruption of the non-indicted 1 corporation at the National Assembly members, and the non-indicted 3 transferred the relevant materials to the non-indicted 4 of the National Assembly members at that time. In light of the facts established by the court below on October 22, 196, the court below acknowledged that there was no possibility that the defendant's act was false or unlawful in the facts committed by the non-indicted.

B. Article 8 of the Court Organization Act provides that "the decision at a trial of a higher court shall bind the lower court with respect to the case in question, and even after the latter part of Article 436 (2) of the Civil Procedure Act provides that the court of final appeal shall bind the lower court. Although the Criminal Procedure Act does not provide any corresponding express provision, the court of final appeal, which is based on the principle of law, may intervene with the propriety of the lower court's decision on fact-finding in accordance with Article 383 or 384 of the Criminal Procedure Act, may be limited to limited cases where the court of final appeal has a binding force of the lower court's decision on the ground of reversal, and in this case, the binding force of the judgment of final appeal is limited to the passive rejection judgment of the lower court which is the direct ground of reversal (see Supreme Court Decision 84Do1379, Sept. 11, 1984).

The judgment of reversal and return in this case seems to have tried to settle a dispute with the non-indicted 1 corporation in a political way through a National Assembly member. Unlike the above, it is difficult to view that the defendant's notification to the non-indicted 4 and requested the non-indicted 4 to be a news article in the newspaper, or that the non-indicted 4's disclosure of it to the press is highly expected to be an article by disclosing it to the public. Accordingly, even if the report was made in the newspaper, it is difficult to find the defendant liable for the crime of defamation by publication because it is difficult to view that the defendant is responsible for the crime of defamation by publication. Thus, the judgment of the court below before remanding the case which found the defendant guilty of the charge of defamation by publication prior to the change in the facts charged, was erroneous in the misapprehension of the legal principles of defamation by publication or misconception of facts against the rules of evidence. Thus, since the binding force of the judgment of reversal and return is only passive in the judgment of the court below that the facts charged by publication are not recognized until it was remanded, the court below's judgment reversed the judgment below's new judgment below's judgment as to reverse this part of facts.

2. Determination on the crime of defamation by publication

The court below found the defendant guilty of the crime of defamation on the ground that, based on its adopted evidence, the non-indicted 1 corporation was rapidly cultivated by the government's protective policy and preferential finance of 10 billion won, the President's state as the rear force of the non-indicted 1 corporation, the prosecutor in charge as the rear force of the non-indicted 5 corporation, put pressure into the prosecutor in charge, processed the fraud case against the non-indicted 2 without suspicion, the defendant also demanded the non-indicted 2 as a telephone, or the defendant made a false statement that the performance of the ultra-frequency diagnosis machine created by the non-indicted 1 corporation was able to be able to be able to be recognized as legitimate, taking into account the motive, circumstance, and result of the defendant's statement of such fact, since the defendant could be recognized as having made a report to the reporter by pointing out the fact that the defendant was true, without permission, and the purpose of defamation was also recognized.

In light of the records, the above fact-finding and judgment of the court below are justified and acceptable, and there is no error of law as to misconception of facts due to violation of the rules of evidence or violation of law as to interpretation and application of Article 309 (2) of the Criminal Act as alleged in the

3. Determination as to whether the application of the Acts and subordinate statutes on concurrent crimes is illegal

According to Article 323(1) of the Criminal Procedure Act, the reason for the judgment of conviction must clearly state the facts that are a crime, the summary of evidence, and the application of the law. In applying the law, there is a brack or listed ceremony centering on the appearance and the listing of the articles, but any fact should be clearly stated in any way or in any case where several defendants are involved in a number of crimes. Therefore, in applying the law in the reason for the judgment of conviction, there is heating the legal text governing each criminal fact while applying the law in the reason for the judgment of conviction, and the statutory punishment does not specify the choice of punishment for a crime as selective, but it is not a violation of the above legal provision in which the punishment is aggravated but it does not constitute a violation of the law, but if it can be known that the judgment of the court has been made by applying any law by specifying the type of punishment and its term of punishment (see Supreme Court Decision 200Do650, May 12, 200).

The court below held that the court below erred in violation of Article 323 (1) of the Criminal Procedure Act by failing to specify the types of punishment which the statutory penalty selects for each crime as provided for in the statutory provisions, and by failing to specify whether the punishment is aggravated despite the aggravation of concurrent crimes, although the court below erred in the violation of Article 323 (1) of the Criminal Procedure Act. However, as long as the execution of punishment is suspended for one year, the defendant shall be punished by imprisonment for eight months, each selective type of imprisonment shall be selected, and the punishment shall be deemed to have been imposed within the scope of the term of punishment where the punishment is aggravated for concurrent crimes as provided for in the publication of the first instance court holding that the most severe punishment is determined within the scope of punishment, which affected the conclusion of the judgment. Accordingly, the above error of the court below did not affect the conclusion of the judgment.

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

Justices Kim Yong-dam (Presiding Justice)