[1] The meaning of "the purpose of the crime of defamation by publication" under Article 309 (1) of the Criminal Code

[2] The case holding that a local female organization’s publishing a letter on its website or newsletter that a professor of the National University committed an indecent act against female students in its own laboratory is for public interest, and it cannot be concluded that there is a purpose of defamation

[1] The crime of defamation by publication under Article 309 (1) of the Criminal Code is established when another person’s reputation is damaged by pointing out facts through newspapers, magazines, radio, or other publications for the purpose of slandering another person. Here, “the purpose of criticism” requires intention or purpose, and is in conflict with the subjective intention of the actor, as it requires intention or purpose, and thus, it is reasonable to view that the purpose of defamation is denied unless there are special circumstances where the alleged facts are related to the public interest.

[2] In a case where a local female organization posted a letter on its own website or newsletter stating that a professor of a national university committed sexual assault against female students on his/her own, the case holding that the act of publishing the above contents on the Internet homepage or newsletter is for public interest for the purpose of promoting a thorough investigation and punishment of sexual assault cases in school, as well as a preparation of countermeasures to eradicate sexual assault in school, even though considering the overall circumstances, such as the status of a victim who is a professor of a national university, the content and character of the statement, the method of expression, the motive and circumstances of expression, etc., are considered, and thus, it cannot be concluded that there is a different purpose of defamation, as it is for public interest.

[1] Article 309(1) of the Criminal Act / [2] Articles 307(1), 309(1), and 310 of the Criminal Act

[1] Supreme Court Decision 97Do158 delivered on October 9, 1998 (Gong1998Ha, 2715) Supreme Court Decision 2003Do6036 delivered on December 26, 2003 (Gong2004Sang, 317)

Defendant 1 and one other

Defendants

Law Firm Samil, Attorneys Kim Han-chul et al.

Daegu District Court Decision 2002No3684 Delivered on April 11, 2003

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

1. Regarding ground of appeal No. 1

In order to establish the crime of defamation by a statement of false facts as provided in Article 307(2) of the Criminal Act, the criminal must publicly indicate the fact, and the fact should be the one which impairs people's social evaluation, and the criminal should have recognized that such fact was false (see Supreme Court Decision 9Do4757, Feb. 25, 2000, etc.). In this context, if the important part is consistent with the objective fact, even if there is a little difference from the truth or somewhat exaggerated expression, it cannot be viewed as a false fact. However, in determining whether it is a false fact, it is sufficient to determine whether it is an important part that is not consistent with the objective fact by examining the overall purport of the contents of the publicly alleged fact in order to determine whether it is a false fact. Moreover, the perception of a false fact as a subjective requirement is only an incomplete intention.

According to the reasoning of the judgment below, the court below acknowledged the fact that there was a false statement about the victim 1 as stated in the judgment after compiling the adopted evidence, and judged that even if the victim 1 rapes the non-indicted, the method of rape is an important element in the crime of rape, the victim 1 included the non-indicted 1, who was under the influence of alcohol, and carried the non-indicted 1's abortion, and the victim 1 did not have been punished prior to the crime of rape, and the defendants did not have any other investigation into the victim 1's past history, and there is a high possibility that the victim 1 is a habitual offender. In light of the above facts, the court below determined that the defendants' statement about the victim 1 cannot be viewed as merely a false fact but merely a use of a false or somewhat exaggerated expression, and that the defendants did not have any special investigation into the rape of the victim 1 and even before the judgment on the victim 1 was pronounced, it did not err in the misapprehension of the legal principles as to defamation or a false statement in light of the facts alleged in the grounds for appeal.

2. Regarding ground of appeal No. 2

A. According to the reasoning of the lower judgment, the lower court rejected the Defendants’ assertion that there was an indecent act against the victims of sexual harassment on the Internet homepage (including the victim’s name omitted) under the title “(2) of the victim’s personal rights by publicly announcing the victim’s name on the Internet homepage of Daegu Branch of the Republic of Korea,” and that there was an indecent act against the victims of sexual harassment on July 200. The perpetrator (the victim’s second name omitted) continuously posted the victim’s name and e-mail to the same department for the purpose of disclosing the fact that he/she was not guilty of sexual harassment on the Internet homepage of the said 2, and that it was necessary to publicly announce the victim’s name and e-mail on the ground that he/she had no criminal intent to mislead the victims of sexual harassment on the part of his/her own, and that it was an indecent act against the victims of sexual harassment on the Internet homepage of the said 2, including the victim’s name and e-mail.”

B. However, we cannot agree with the judgment of the court below for the following reasons.

Article 310 of the Criminal Code provides that "when the alleged facts relate to the public interest" and "when the alleged facts relate to the public interest" are objectively seen, an actor should also indicate the facts for the public interest subjectively. As such, Article 310 of the Criminal Code provides a punishment provision for the protection of an individual's reputation and special exemption provision, such as Article 310 of the Criminal Code provides that, in light of the core fundamental rights which serve as the foundation of democracy, the freedom of speech guaranteeing an individual's right to know, diverse thoughts and ideas, and the freedom of speech to exchange opinions, it is for the purpose of opening a room for fair criticism by comparing and balancing two fundamental rights, such as the protection of an individual's reputation and freedom of speech, the issue of whether the alleged facts relate to the public interest is 60,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

In addition, the crime of defamation by publication under Article 309(1) of the Criminal Act is established when a person defames another person by pointing out facts through newspapers, magazines, radio, or other publications for the purpose of slandering another person. Here, the term "the purpose of criticism" is a crime that requires the intention or purpose of criticism and is in conflict with the subjective intention of the actor. Thus, unless the publicly alleged facts are related to the public interest, the purpose of defamation is denied unless there are special circumstances (see Supreme Court Decisions 97Do158 delivered on October 9, 1998; 2003Do6036 delivered on December 26, 2003, etc.).

According to the records of the case, defamation at issue here is the content closely related to the official activities of the professor of the National University, which is an indecent act against female students in his/her own research institute. Sexual assault problem occurring in the school is a public interest issue with public character and sociality, which contributes to the formation of public opinion and pure private area. In particular, as the representative of a local private organization with the aim of establishing protection against female students from sexual violence and domestic violence, the Defendants are aware of the facts of the case after the occurrence of the case and (university omitted) the victim's non-governmental organization with the victim's opinion and the victim's non-governmental organization with the purpose of promoting the preparation of measures to eradicate sexual assault in the school, and even if such activities were conducted to inform them of their activities, they cannot be seen as having known the facts of the sexual offense, such as the victim's right or Internet awareness, and the victim's act cannot be seen as having known the facts of the sexual offense, and there is no other objective motive or content of the victim's expression, such as the victim's expression, and the victim's explanation of the above.

Nevertheless, the court below held that the defendants' statements about the victim 2 cannot be deemed to be about the public interest and rather there was a purpose of defamation against the defendants. The court below's judgment in this part is not erroneous in the misapprehension of legal principles as to the purpose of defamation by means of publication, or misconception of facts in violation of the rules of evidence, and it is clear that such illegality has affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. Conclusion

Therefore, among the judgment of the court below, defamation against victim 2 and defamation through publication can no longer be maintained. Since each of the above offenses was sentenced to a single punishment in relation to the remaining convictions and concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)