[1] The burden of proving false perceptions, etc. in the crime of defamation by publication under Article 309(2) of the Criminal Code (=the prosecutor) and the method of determining whether the alleged facts are false

[2] The meaning of "the purpose of slandering a person" as provided by Article 309 (2) of the Criminal Act and the method of determining such "the purpose of slandering a person"

[1] Article 309 (2) of the Criminal Act / [2] Article 309 (2) of the Criminal Act

[1] Supreme Court Decision 96Do2234 delivered on February 14, 1997 (Gong1997Sang, 841) Supreme Court Decision 99Do4757 delivered on February 25, 200 (Gong2000Sang, 906) / [2] Supreme Court Decision 97Do158 delivered on October 9, 1998 (Gong1998Ha, 2715) Supreme Court Decision 2003Do6036 Delivered on December 26, 2003 (Gong2004Sang, 317)

Defendant

Prosecutor

Attorney Park Jong-soo

Seoul District Court Decision 2003No7378 Delivered on December 16, 2003

The appeal is dismissed.

1. In a case where the facts constituting the elements of a crime prosecuted in a criminal trial are charged for defamation by publication under Article 309(2) of the Criminal Act, since the facts constituting the elements of the crime are either subjective or objective requirements, and the burden of proof is the prosecutor, the prosecutor must prove that the alleged facts were revealed, and that the alleged facts were false because they were not consistent with the objective truth, and that the Defendant knew that the alleged facts were false. In such a case, in determining whether the alleged facts are false, if the material facts are different from the truth or somewhat exaggerated expressions are consistent with the objective facts, it cannot be viewed as false facts (see, e.g., Supreme Court Decisions 96Do2234, Feb. 14, 1997; 9Do4757, Feb. 25, 2000).

The court below found the defendant not guilty on the ground that most of the facts alleged in the book of this case were false, and even if some expressions are incorrect or somewhat exaggerated, they cannot be viewed as false facts. In light of the above legal principles and records, the court below's above determination is just and it did not err by misapprehending the facts contrary to the rules of evidence as alleged in the ground of appeal No. 1.

2. In Article 309(2) of the Criminal Act, “the purpose of slandering another person”, which is the requirement for the crime of defamation by publication, is to determine by comparing and balancing the degree of infringement of reputation that may be damaged or damaged by the expression, taking into account all the circumstances such as the content and nature of the relevant publication, the scope of the other party to whom the publication of the relevant fact was made, the method of expression, etc., as well as the contents and nature of the relevant publication, the scope of the other party to which the publication of the relevant fact was made, and the method of expression, etc. (see Supreme Court Decisions 97Do158, Oct. 9, 1998; 2003Do6036, Dec. 26, 2003).

In light of the above legal principles and records, the lower court’s determination that it was difficult for the Defendant to view that there was a purpose to defame the religious organization of this case as indicated in the judgment of the lower court was justifiable, and there was no error by misapprehending the legal doctrine on defamation by publication, as otherwise alleged in the ground of appeal

3. Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)