[1] The meaning of “public performance” as a constituent element of the crime of defamation

[2] Whether the crime of defamation is an abstract dangerous crime (affirmative)

[1] Article 307 of the Criminal Code, Article 308 of the Criminal Procedure Act / [2] Article 307 of the Criminal Code

[1] [2] Supreme Court en banc Decision 2020Do5813 Decided November 19, 2020 (Gong2021Sang, 57) Supreme Court Decision 2015Do508 Decided December 24, 2020 / [2] Supreme Court Decision 92Do455 Decided March 23, 1993 (Gong193Sang, 1328)

Defendant 1 and two others

Defendants and Prosecutor

Law Firm U&A, Attorneys Choi Jong-soo et al.

Daejeon District Court Decision 2015No569 decided September 16, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

Public performance as a constituent element of defamation refers to “unspecified or multiple persons recognized.” Even if a fact is publicly known to a minority, where the other party is likely to spread the facts publicly known to an unspecified or many unspecified persons, performance is recognized even in cases where the other party’s statement is likely to spread such facts. In order to recognize a performance of an individual minority’s statement on the grounds of the possibility of spreading it to an unspecified or many unspecified persons, it is insufficient to say that there is a possibility that it would be readily disseminated, and it is highly probable or probable, and the prosecutor’s strict certification is required. In particular, in cases where the other party to the statement is in a position of a public official or a similar position to be kept in the duty of confidentiality or process, performance is considerably expected to be considerably high, and performance is denied, and performance should have special circumstances to deem that it can be disseminated to an unspecified or many unspecified persons regardless of such relation or status (see Supreme Court en banc Decision 2020Do5813, Nov. 19,

With respect to defamation on April 19, 2013 among the facts charged in the instant case, the lower court acknowledged that: (a) the Defendants and the victims submitted a written request to the person in charge of the instant case to request the prohibition of access to the said company by pointing out false facts about the victim; (b) the Defendants and the victims of the instant case were voluntarily decided on the disciplinary action against the Gyeonggi-do Gyeonggi-do High-do High-do High-do High-do High-do High-do High-do High-level; (c) delivered it to the Nonindicted Party, who is the receiving employee of the said company; and (d) conducted the internal review and report of the said company; (c) although the written request in this part of the facts charged is based on false facts, the victim was subject to disciplinary action in violation of the self-regulation regulations; and (d) thus, (e) recognized that there was a measure of prohibition of access to the said company by the said company; and (e) determined that the Defendants denied public performance and acquitted the Defendants on the ground that the false facts expressed by

Examining the facts established by the lower court in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the public performance of defamation, contrary to what is alleged in the grounds of appeal.

2. As to the Defendants’ grounds of appeal

The crime of defamation should be deemed to have been destroyed even if it was found that an unspecified person or a large number of people did not know the facts known to him/her as an abstract dangerous crime (see Supreme Court en banc Decision 2020Do5813, Mar. 23, 1993). Even if the other party to the statement already known the facts, it cannot be deemed that there is no possibility of dissemination, i.e., performance (see Supreme Court Decision 92Do455, Mar. 23, 199

With respect to defamation around June 18, 2013 of the facts charged in the instant case, the lower court determined that the Defendants constituted defamation even if the content of the Defendants’ act was a prolonged question among the dynamics, even if they were to have made a signature by making a false statement about the victim and read it to several persons, and thus, constitutes a crime of defamation if they were to have been signed by an unspecified or multiple persons.

Examining the facts established by the lower court in light of the aforementioned legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine on the public performance of defamation, contrary to what is alleged in the grounds of appeal. In addition, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on false facts

3. Conclusion

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

Justices Noh Tae-tae (Presiding Justice)