The person who bears the burden of proving the falsity of the crime of defamation by publicly alleging false facts (=the prosecutor) and the method of determination

Article 307(2) of the Criminal Act

Supreme Court Decision 99Do4757 delivered on February 25, 2000 (Gong2000Sang, 906) Supreme Court Decision 2004Do207 Delivered on April 14, 2006

Defendant 1 and three others

Defendants

Attorney Shin Shin-chul

Suwon District Court Decision 2007No3424 Decided January 24, 2008

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the ground of appeal on defamation

A. Summary of the facts charged and the judgment of the court below

The summary of defamation among the facts charged in the instant case is that the Defendants conspired with the directors of the Pyeongtaek-si Livestock Cooperative. At the 2-dong post office located in Pyeongtaek-dong, Pyeongtaek-dong, Pyeongtaek-dong, on June 8, 2006, the Defendants requested an audit of the problems that occurred in the election of the head of the cooperative at Pyeongtaek-si, which was implemented on June 27, 2006, and sent the special audit report to the members of the cooperative. In addition to the above special audit report, the Defendants made a document "partnership-type" in the name of the cooperative, and prepared a document "in addition to the above special audit report, the above non-indicted 1, who is the head of the cooperative, had all overseas travel in the name of the cooperative event without interest," stating that "the above non-indicted 1, who is the head of the cooperative, had all overseas travel in the name of the cooperative event, and damaged the honor of the above non-indicted 1 by pointing out false facts to the members 1,510 members of the cooperative.

In full view of the evidence duly examined and adopted by the lower court, namely, the statements in the first instance court and the statements in the prosecution and the police, etc., it is reasonable to view that the Defendants’ expressive act as indicated in the facts charged was a statement of false facts. Furthermore, the lower court determined that there is no room for applying Article 310 of the Criminal Act to the Defendants’ act of describing the facts of the instant crime, whose reputation was damaged by openly pointing out false facts, to the effect that there is no room for applying

B. Judgment of the Supreme Court

However, such determination by the court below is difficult to accept for the following reasons.

Since the facts constituting the elements of a crime prosecuted in a criminal trial are the prosecutor's burden of proof, whether it is a subjective requirement or an objective requirement, the prosecutor must prove that the facts alleged were revealed to fall the social evaluation of the person in the case prosecuted for defamation by a false statement under Article 307 (2) of the Criminal Act, and that the alleged facts were false because they were not consistent with the objective truth, and that the defendants knew that the alleged facts were false. In this case, in determining whether the alleged facts were 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 (see, e.g., Supreme Court Decisions 9Do4757, Feb. 25, 200; 2004Do207, Apr. 14, 2006).

In the instant case, according to the criminal facts of the lower judgment, the part of the Defendants’ expressive act, namely, “Nonindicted 1, the president of the cooperative, without interest in fostering livestock farmers, carries overseas travel in the name of the cooperative event,” is the expression of false facts. However, there is no indication that what is the true fact compared with the falsity.

In addition, to apply Article 307(2) of the Criminal Act to the above expressive act of the Defendants, the facts indicated in order to apply Article 307(2) of the Criminal Act (including the facts indicated indirectly on the premise of the statement of opinion) are false, and the fact that the Defendants perceived such false facts should be proven to the extent that there is a reasonable doubt.

Therefore, according to the evidence admitted by the court below, as to whether the defendants were proven to the extent that the facts alleged directly or indirectly are false, the defendants asserted that the facts alleged by them are consistent with all the facts. Thus, the defendants' statements are not the evidence consistent with the fact that the above alleged facts are false, but it is insufficient to recognize that the above alleged facts are false even if comprehensive statements are made by the remaining people (see, e.g., Non-Indicted. 1, the victim's statement to the effect that "the contents recorded in the union newsletter are different from the fact that the audit is false, but the association president is erroneous, and the subjective opinion is different from the fact that the contents stated in the union newsletter are added."

Rather, according to the trial records of this case, particularly the report on the special audit report of this case, "the details of travel expenses and expenses incurred in visiting and staying abroad" (318 pages of the trial records), Non-Indicted 1's statement (the trial records No. 467 pages) at the court of original instance (the trial records No. 479-488 pages) of the witness non-Indicted 1's attorney's statement at the court of original instance (the trial records No. 479-48 pages) and "the travel schedule" (the trial records No. 479-48 pages) submitted by the defendants, Non-Indicted 1 of the president of the cooperative was 30 days every five times in the case of the year No. 2004 and 46 days in the case of the year No. 2005, all of them were 46 days in the association's prior overseas travel, etc., and there is no interest in the plaintiff's presentation of the facts that "the part "in the name of the cooperative's event is pure." can be seen.

Ultimately, the judgment of the court below holding that the Defendants’ expressive act constitutes a crime of defamation by publicly alleging false facts under Article 307(2) of the Criminal Act or a crime of defamation by publicly alleging false facts is erroneous in the misapprehension of legal principles as to the crime of defamation by publicly alleging false facts or without any evidence, and there is a ground for appeal by the Defendants pointing this out.

2. As to the ground of appeal on the violation of the Agricultural Cooperatives Act

The court below acknowledged the facts as stated in its reasoning after compiling the evidence duly examined and adopted. In light of the circumstances stated in its reasoning, the court below determined that (1) the defendants knew that the contents of the instant newsletter would affect the election of the head of the association; (2) the defendants intended to inform the members of the result of special audit before the election of the head of the association; and (3) the defendants did not engage in an election campaign by taking advantage of the status of the director; and (2) the defendants' assertion that the distribution of the instant newsletter was not an illegal act; and (2) even if the defendants did not recognize the illegality, it is difficult to believe that the defendants did not know that the distribution of the instant newsletter was an illegal act. In light of the relevant statutes and the records, the judgment of the court below is just and there is no error of law by misapprehending the relevant legal principles.

3. Conclusion

Therefore, the part of the judgment of the court below concerning defamation cannot be reversed. As long as this part of the judgment of the court below is reversed, the judgment 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 on the bench.

Justices Kim Nung-hwan (Presiding Justice)