Defendant

Both parties

Duties, the status of prosecution, and the trial on the case.

Law Firm Barun et al.

Seoul Western District Court Decision 2015Ra1605 Decided February 5, 2016

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of this decision shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles by the defendant

The argument that the Defendant raised in his book is not a statement of fact but a statement of opinion, and the Defendant did not have any awareness or purpose of slandering false facts. Moreover, the lower court, without due process, adopted reference materials submitted by the prosecutor after the closing of argument, and sentenced the Defendant guilty. Therefore, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

B. Both parties' assertion of unfair sentencing

The sentence of the court below is unfair.

2. Summary of the facts charged in this case

On September 4, 2014, the Defendant, as a historical researcher, is the Director of Dogsung History and Culture Research Institute. Around September 4, 2014, the Defendant written and published a book “△△△△△△△△” (hereinafter “instant book”). There was a content dealing with Nonindicted Party 1’s “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Non-Indicted 1 stated in his own book that the core of the theory of "Sama Doz" (hereinafter referred to as "Sama Doz" is not the existence or character of the body that Japan has not maintained over the south of the Korean Peninsula for 200 years, regardless of the sign discharged from the books of this case and the books of Non-Indicted 1), and that the Korean history scholars expressed that "Sama Doz" in the technologies of "Sama Doz" did not constitute a "Sama Doz" in the context of "Sama Doz" and that materials favorable to Korea, such as "Sama Doz", in comparison and cross-verification with other historical materials, were pointed out that they were not reliable, and that it was not a "Sama Doz" in this case, and that it was not a "Sama Doz" in the first half of the Korean Peninsula since 200, and that it was not a "Sama Doz" in the first half of the Korean Peninsula.

In other words, the view of Non-Indicted 1 was not only denying the name of the Yinaea Japan Headquarters, but also against the use of the historical materials of the Yaeong, which Japan new and sealed, that Japan occupied a certain area of the south of the Korean Peninsula, including the Republic of Korea at a specific time during the specific period of the ancient Ambassador.

Nevertheless, in the book of this case, the Defendant stated, on his own book, that Nonindicted Party 1 stated: (a) “Neari Headquarters theory”; (b) “Yari Headquarters theory”; and (c) “Yari Island is the territory and citizens of the Yamaton regime; and the Yamato regime has ruled over the left part of the Korean Peninsula through a whiteout; and (d) “Wari Headquarters theory is believed to be true and does not criticize Sama in fact”. However, the fact did not contain the same content as the Defendant’s technique, as seen above.

On the other hand, the Defendant asserted in the instant book that if Nonindicted Party 1 committed a pro-Japanese act on the basis of the aforementioned false facts, it would be criticized as a pro-Japanese or colonialist, and that Nonindicted Party 1’s act of a pro-Japanese during the end of his speech was not excessive.

Accordingly, with a view to slandering, the Defendant undermined the honor of Nonindicted Party 1 by openly pointing out false facts through publications.

3. Determination

A. Of the facts charged in the instant case, the determination as to ① (a) part of the facts charged in the instant case (the “Minaeaey Headquarters Information”) and ③ (a) part of the instant charges (the “Minaey Island is believed to be a fact and does not criticize the Saemn women’s theory as a model

First of all, among the facts charged in the instant case, the part that Non-Indicted 1 stated as the fact that it was a fact that it was a fact that it was a fact that it was in fact that it was in fact that it was in fact, and that Non-Indicted 1 stated as the fact that it was "a fact that it was in fact that it was in fact that it was in fact that it was in fact that it was in fact that it was in fact that it was described as the fact that it was in fact that it was in fact

(1) In this case’s book, Nonindicted Party 1 (“Nonindicted Party 1”) and Nonindicted Party 1 (“Nonindicted Party 1”) reported white papers as a member of Japan’s flag on the basis of “○○○○○○○○○○○○○ (2010)” and “Nonindicted Party 1 was actually in control of the south of the Korean Peninsula.” (No. 338), “Nonindicted Party 1 did not criticize the initial non-record of “Seoul Party 1,” and the Switzerland’s women who were the new symanism, the new symanism,” and “No. 339 page” (No. 339 page), “No. 1 reported white papers as a member of Japan’s flag on the basis of “Japan,” and “No. 15,000 Japan received the articles of “No. 10,000,000 from Japan and No. 35,000” (No. 15,000).

(2) On the other hand, the books of this case also have the following technologies.

○○ “Non-Party 1 is governed by this book and three divided arguments. ① The south part of the Korean Peninsula actually existed in 199. ② By the way, the Manday Headquarters was controlled by dominates rather than by the Mamatoma regime in Japan. ② The Manday Headquarters was a lux. ② The Domins of the military unit, which assessed the 7th country in 1999 in Mara, was a luxian regime, and the Maraxa in the form of the increase in Mana, rather than the Mata, I think, “Non-Party 1 was the Mana in the form of the Manaear regime in Mana and the Mana, and the 3rd part of the Korean Peninsula.” The 1st part of the 3rd part of the 1st part of the 1st part of the Korean Peninsula should have been expressed in the form of the Manaear regime in Japan, not the 1st part of the 1st part of the Korean Peninsula.

○○ “The Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar in the middle to the middle of the 4th century. From the middle to the middle of the 6th century, the Republic of Korea directly controlled the left part of the Korean Peninsula, and directly controlled the left part of the Korean Peninsula. It is the Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar. However, Nonindicted Party 1, who believed the Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamar’s Gamn’s Gamn-do’s Gaon’s Gaon’s Gaon’s Ga.

○ “The control of the Ginna Headquarters is a white challenge, and the control of the domination is the Hearian regime. Nonindicted Party 1 emphasizes the relationship between the Hearian regime and the new, old, and whiteout. If the whiteout is a upper country of the hear adjustment, Nonindicted Party 1’s logic may not be considered a big problem. However, Nonindicted Party 1 does not see it.” (Article 340, 341 of the book of this case)

○ ○ “Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-Il-

(3) Examining the overall purport of the Defendant’s book of this case as indicated in the facts charged, the Defendant’s writing argues that, in full view of the technical parts as described in (2) above and the following circumstances and arguments, the Defendant did not simply criticize the No. 1 theory asserted that “No. 1 was the entire content of the No. 1 and No. 1 theory,” but Nonparty 1 asserted that “No. 1 was the result of the Defendant’s construction of No. 1’s argument that the No. 1’s control body of the No. 1’s Mamato-U and No. 1’ in Japan was the same as that of the No. 1’s Mamato-U in light of the aforementioned facts charged, it would be reasonable to conclude that the Defendant’s construction of No. 1’s overall content of No. Mamato-U and No. 1’, as the result of the Defendant’s construction of No. 1’s argument that it was a result of the Defendant’s construction of No. Mamato-U-U-U-U-U-U-U-U.

○ In order to grasp the purpose of this article, only the phrases or sentences used in the particular part of the article is removed and interpreted separately from the meaning of that part, rather than being buried and buried in the meaning of that part, it is necessary to understand the overall purpose of this article by taking into account the flow of the logic developed before and after the words or sentences, the overall context thereof, the author’s intent of writing, etc.

As seen in the above paragraph (2) above, the Defendant repeated the technology that “Nonindicted 1 asserts that the subject of the control of Mana seems to be denying the part of Mana’s right among the contents of the Ethymbook and the Ethymbook.” Therefore, it seems that the reader read the above article did not recognize that “Nonindicted 1 recognizes the entire contents of the Ethymbook and the Ethymbook as a fact,” based on some sentences or expressions described in the above paragraph (1).

As seen earlier, in the book of this case, “Nonindicted 1 is a person in which the Republic of Korea and Japan actually controlled the south of the Korean Peninsula.” However, if it is interpreted as a "government organization established by the Republic of Korea and Australia to control her free will,” it is inconsistent with the Defendant’s technology that “Yaear Headquarters has actually controlled her out-of-the-state government, rather than Japan’s out-of-the-state government,” and in other parts of the book of this case, it is reasonable to interpret that “Nonindicted 1 actually controlled her out-of-the-state government and its actual control her out-of-the-state government” as the grounds for “non-party 1’s out-of-the-state government or its actual control her south of the Korean Peninsula,” and it is reasonable to interpret the meaning of “non-party 1’s out-of-the-state government or its actual control her out-of-state government,” without stating the fact that she controlled her out-of-state government or its actual government.”

(4) Next, in light of the following circumstances, as to whether the Defendant stated in the instant book that “Non-Party 1 did not criticize the remainder of the content of Syna’s Syna’s Syna’s Gyna’s Syna’s and Syna’s Gyna’s Gyna’s Gyna’s control, and recognized it as a fact,” as seen earlier, it is generally consistent with the truth and cannot be deemed as a statement of false facts.

○○ The core of the German Headquarters theory claimed in Symar may be summarized as “the location of Famna (the left part of Korea), ② the duration of Famna (the duration from 369 to 562, respectively), ③ the subject of the control of Famna (the need to be), ④ the historical basis (the historical basis) and ⑤ the subject of the control of Famna, ⑤ the control of Famna,” and Nonindicted Party 1 denies only the control subject of the above five core elements on his own books, and follows the view of Eamna as a whole.

○ In particular, Nonindicted Party 1, on one’s own books, read “not only in a special case, but also in a designated non-indicted 1’s book 43 pages 7)” with respect to the name of Gamar seven countries (non-indicted 1’s book, Nam, Green, Amra, Gra, Gra, and H.) (in the case of Non-indicted 1’s book, Non-indicted 1’s book 1’s book 17,27, 49, 66, 79, 103, 139, 160 pages), followed Non-Indicted Party 1’s view in terms of the location and direction of Gamar in Korea’s textbook as it appears that there were no different theories such as the position and direction of Gamar on the Korean Peninsula as it appears that there were no different theories such as the position and direction of Gamar on the Korean Peninsula.

As seen in paragraphs (b)(3) and (4) above, Nonindicted Party 1 described that it is highly likely that it will be a fact without any critical review in describing the contents of the relationship with the regime of the Republic of Korea and the outmato.

(5) On the basis of the phrases described in paragraph (1) above, even if it is assumed that the defendant stated in the book of this case that "the non-indicted 1 stated that "the non-indicted 1 had been directly controlled by the state or the region through the governing body, such as the Hana Headquarters, while the non-indicted 1 stated that he was in fact controlled by the state or the region," it appears to the purport that the above technology of the defendant stated to the effect that "the non-indicted 1 stated on the surface that "the non-indicted 1 was controlled by the external form of domination, such as Bara, and her hys and hys and hys and hys and hys and hys and hys, and that "the non-indicted 1 had been in fact controlled by the state or the Japanese manager by the non-indicted 1, not by the state or the Japanese manager by the non-indicted 1."

○○ “Igman’s Domination” and “Igman’s Domination” do not appear at all in the name of “Igman’s Domination” or “Igman’s Domination. However, in Japan, at the same time as Igman’s Domination and at the same time as Igman’s Domination in Japan, the character of the lawsuit in which Igman’s Domination and name coincide appeared.” (No. 1

○ “I am well-known that we have become dint of being the dwarf due to the Domination of Do,” (No. 120 pages of Nonparty 1).

○○ “The fact that the name of Madman after the Do day does not appear at all in the records of Japan, such as “Japan,” shows that he/she has settled in another name.” (No. 120 pages of the book by Nonparty 1)

○ “The post whiteout management was mainly conducted by sciffic siffic siffic siffic siffic siffic siffic siffic siffic siffic siffic siffic siffic siffic siffic siffics but siffic siffic siffic siffic siffic siffic siffic siffic siffic s

○ “Saeman is a kystrophy that maliciously affected the forfeiture of the rights of the Mamatoman regime. Cines naturally able to lead the Mamatoman regime, and (comfore) took three extra-party descendants into a tent, and among them, took the salute power, such as killing the salute.” (Public Prosecution 1’s Book No. 1111).

○ “A person who had previously been in her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of her possession of hered possession of her possession

○ “The camping management of the white papers was carried out by almost fluences, such as pastors, necks, flusiums, flusiums, and so on” (Nonindicted 1’s book No. 95, 96 pages).

B. The judgment on the part of the facts charged in the instant case ① (the “Bain is the territory and citizens of the Mamaton regime, and the Mamaton regime has ruled over the south of the Korean Peninsula through a whiteout)

Next, in the book of this case, the Defendant argued that “Nonindicted 1 was a citizen of the Yatoman regime, and the Yaton regime was governing the South Korean Peninsula through a whiteout,” “The part described in this case is a statement of fact or an expression of opinion.”

(1) It is true that the book of this case contains descriptions such as “The control of the Ginna Headquarters is white, but the control of that white system is the Hearian regime” (No. 340, 341 pages), “Nonindicted 1 asserts that it is the governing part of the Republic of Korea through the white system (No. 345 pages) and “Nonindicted 1 asserts that it was the colonial rule of the Republic of Korea and that it was the colonial rule of the Republic of Korea (No. 351 page),” “The Republic of Korea was the colonial rule of the Republic of Korea through the white system (No. 345 page).”

(2) Also, there are the following technologies in the books of Nonindicted Party 1.

○ Therefore, the theory that at least the Hearian regime has indirectly controlled Mana as a foundation for Mana, can not be established as far as it is based on the "Mana" (No. 133 et al. of 1).

○ “In view of the relationship between the two countries at that time, it can be said that the whiteout provided advanced literary items to the Nagoyan regime and that the Nagoyan regime was a Gun source to the whiteout. If (a) the relationship between the Nagoyan regime and the whiteout regime at that time would be defined as having been a volunteer-related relationship within a broad sense (Article 144 of the Ministry of Public Prosecution 1).”

○ “If the scale of the military service provided to the Yaman regime at the time is not more than 500 to 1,000, it would be difficult for the Yamaman regime to independently carry out its independent operations on the Korean Peninsula in its size. In this respect, the military forces sent out by the Yamaman regime to the Yamaman regime to the Yamaman is not for the left side of the Korean Peninsula, but for the left side of the Korean Peninsula.” (Public prosecution No. 147, 148 pages)

○ Even if the content of “Japan” in the 544-year record, it is well known that the military price sent by the Yatoma regime had the character of supporting the white papers.” (No. 148 pages of Nonparty 1’s book)

○ ○ “The Maran of Mana-ri was out of Mana-ri. Therefore, in order to maintain Mana-ri relations with Mana-ri, Mana-ri was in place where it would have to avoid direct conflicts with Mana-ri in the south, as far as possible. (b) At the time, Mana-ri was in place in the border area of Mana-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-

(3) However, on the other hand, Nonindicted Party 1’s books also have the following technologies.

○○ There was no way to say that the 1stman regime was delivered directly to her, as well as most of its intentions. For example, several representative issues were as follows: (b) November 543; and (c) 10 years have passed since the 1st century sent out to the Japanese Ministry of Health and Welfare. Moreover, the 10 years have passed since the 3th anniversary of the delivery of the 1st century. The 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 5th anniversary of the 4th anniversary of the 1st anniversary of the 4th anniversary of the 1st anniversary of the 4th anniversary of the 4th anniversary of the 5th anniversary of the 1st century.

○, “First, I think it is necessary to review the exchanges between the rooms of both countries. It is because the king has absolute influence in inter-state exchanges. The king (Seoul 405 to 19) sent the king's colon to Japan, and sent it to Japan by combining the kings, such as the hostiles and the seismics, in the white papers. The king withdrawn the king from the earthquake sources, and thus, entered into a relationship with the king.” (No. 186 pages of the prosecution 1)

○ When the king of the king of the king of the king of the king of the king of the king of the king of the Republic of Korea (the case in which the king of the king of the Republic of Korea has been caused by the king of the king of the king of the king of the king of the king of the Republic of Korea, the king of the king of the Republic of Korea, such as the king, Marina, and the king of the king of the king of the king of the Republic of Korea in lieu of the king of the king of the king of the Republic of Korea. In particular, five king of Japan was established until the king of the king of the Republic of Korea in 477. Of them

○○ “Mamaton regime” is highly likely to have entered into a marriage with a woman of Japan prior to returning to Japan the position in Japan. If so, the same-sexs or the kingn denial of Japan was likely to have been a woman of Japan. If Japan married the king of the white papers as a policy and returned the king of Japan, the other party is highly likely to have been a woman of the king. even at the king of the white papers, it is likely that Japan would have been a woman of the king. “The king of the white papers will have started to be a blood transfusion of the king of Japan (Law No. 187.188 of the Ministry of Justice 1).”

(4) In full view of the aforementioned conflicting technologies and arguments contained in the books of Nonindicted Party 1, the Defendant’s technology, such as paragraph (1), shall be deemed to be an expression of opinion with the content of the Defendant’s value judgment and evaluation as to the logic in the case where the Defendant’s technology is hidden in the books of Nonindicted Party 1. Therefore, since there is no proof of a crime under the premise that this part of the facts charged is a timely statement of false facts, the Defendant’s assertion pointing this out is reasonable.

The term "statement of fact" in the crime of defamation refers to a report or statement of a specific past or current fact, which is substituted by an expression of opinion the content of which is a value judgment or evaluation, and the content of which can be proved by evidence, and in distinguishing whether a statement of determination is a fact or an opinion, it shall be determined by considering the ordinary meaning and usage of language, possibility of proof, context in which the expression in question is used, social situation in which the expression was made, etc. (see Supreme Court Decision 97Do2956, Mar. 24, 1998, etc.).

As follows, the Defendant cited part of Non-Indicted 1’s books, and followed the interpretation or evaluation that he issued on the basis thereof. Thus, the reader who read this part shall be determined by himself as to whether or not the assertion of Non-Indicted 1 cited by the Defendant is interpreted as alleged by the Defendant, and it shall not be deemed as a mere statement of fact.

① Of the records between 507 and 562, the Defendant used the part of Nonindicted Party 1’s book, “On the one hand, at the time of investigating the personal and material exchanges among the 507 and 562 years of “Welish Island, there was only two round-out exchanges, respectively. However, in light of the details of such exchanges, the Yamaton regime did not dispatch all private persons to the Hanish Island, but it did not dispatch them to the Yamamama regime two times in two times each. While the Hanish and the Hanish were 8 occasions of exchange, the Yamato regime dispatched private persons to Hamaman Island over three occasions, while Hana was dispatched to Mamandong regime over five times, it did not see that Gamamaman Government was dispatched to 3 times from the view of the Yatoma regime and that Gao-Mandong was dispatched to 1, 2008 new and new ones.”

② In addition, the Defendant, among Non-Indicted 1’s books, exchanged a deceased person on 39 occasions across 15 occasions in the way that “On the other hand, I sent a deceased person or provided military assistance to Yamato 15 times, whereas Yamato 24 times in the way that there was no exchange with Yamato Yato Yato Yato Yato 24 times. Therefore, the relationship between the Yato Yato Yato Ya to Yato Yato Yato Ya can be deemed to have been close as much as it could not be compared with Yato Yato Yato Ya to Yato Ya Ya to Yato Ya to Yato Ya to Yato Ya to Yato Ya to Ya to Yato Ya to Yato Ya to Ya to Ya to Ya to Y.

③ The Defendant, in the Defendant’s book, dispatched the parts of the “Yamaman Government” to the Republic of Korea or the parts of the peoples on the Korean Peninsula five times before and after, and dispatched all its features to the Republic of Korea for a whiteout. The military forces dispatched in 537 to prevent the Mara from entering into the country or intrusion. In this case, for 46 years of the date on which he was dispatched to the whiteout in the name of the Mamomono Bara, he had to work as a government fee in 586, and returned to the Republic of Korea (the 12-year market price formation). The Defendant consistently cited the part of the Defendant’s book “(the 4-year government of the Republic of Korea)” that “The 5-day government of the Republic of Korea was the Republic of Korea (“the 5-day government of the Republic of Korea”) and the part of the 4-day government of the Republic of Korea (“the 5-day government of the Republic of Korea”) was the only 5-day government of the Republic of Korea.

In the instant book, the Defendant consistently asserted that “the books of Nonparty 1 are hidden, contrary to what is alleged on the surface,” as follows. As such, the meaning of hiding between the books or the author’s hidden intent can be interpreted differently from the perspective of the read person, and it does not have the nature that can be easily proven by objective evidence.

① “Non-Party 1, who actually controlled Nana, created a safety board called Bana, not the Yamaar regime, but the Bana, and explained that Mana actually has maintained the left side of the Korean Peninsula. From the perspective of how it, it may be seen as a reverse ta that revealed the fact that the control of Mana was a white system. However, the essence of this book is not changed even though it has been installed, the essence of this book is not changed. It is said that the flussians’ flusians’ fluor at all times and the flusians’ flusians’ flusss flusss flus ?

② Food and civil scholars may not defend themselves by cutting a sort of a gale. Non-indicted 1 also knows that water would be generated if we talk about this only (the book of this case No. 343).

3. “If the writing is used as a business as a pen, it is familiar with the intersecting of the inner part of the professed title as the outer part. It is the most accurately revealed problem in the world management of the scholars whose choice of terms is the front door.” (No. 349 of the book of this case)

④ The term “use” is a law that expresses well the inner part of a person. Nonindicted 2, like Nonindicted 1, is gathering evidence that Nonindicted 1, as well as evidence that Nonindicted 2, as Nonindicted 1, want to be concealed, accurately gather up to the inner part.” (No. 350 of the book of this case)

○, as seen in the above (c), Nonindicted Party 1 continued to review Nonindicted Party 1’s own position on its own books, “the king government issued an order to do so as to do so,” but the king started to use the king’s right to do so for the purpose of drawing Japan’s islands, and Non-Indicted Party 1’s own research and development. It was doubtful that Nonindicted Party 1 was not a witness of the Republic of Korea and Non-Indicted Party 1’s high level of credibility or credibility on the ground that Non-Indicted Party 1 was not a political party of the king, and that Non-Indicted Party 1 was not a witness of the Republic of Korea on the ground that Non-Indicted Party 1 was not a witness of the Republic of Korea, and that Non-Indicted Party 1 was not a witness of the Republic of Korea on the ground that Non-Indicted Party 1 was not a political party of the Republic of Korea, and that Non-Indicted Party 1 was not a witness of the Republic of Korea on the ground that Non-Indicted Party 1 was not a witness of the Republic of Korea.

C. Determination as to whether there was a purpose of slandering the Defendant

Next, we examine whether there was a purpose of slandering Nonindicted Party 1 against the Defendant.

(1) Relevant legal principles

Article 309(1) of the Criminal Act and Article 61(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., “the purpose of slandering a person” requires the intention or purpose of a hazard, and is in conflict with one another in the direction of subjective intent of an actor as well as for the public interest. Thus, in a case where a publicly alleged fact concerns the public interest, unless there are any special circumstances, it is reasonable to deem that the objective of slandering a person is denied, unless the publicly alleged fact concerns the public interest. In addition, “the case where a timely fact concerns the public interest” refers to the publicly alleged fact pertaining to the public interest objectively, and the actor expresses the fact subjectively for the public interest. The term “public interest” refers to not only to the interests of the State, the society, and other general public,

Furthermore, whether the publicly alleged facts relate to the public interest or not shall be determined in light of various circumstances such as whether the victim caused by the defamation in question is a public official or a private person or not. Whether such expression concerns public interest issues with the public interest that the public should objectively know to the public or private person, whether it belongs to pure private area or not, whether the victim raised the risk of defamation, the nature and degree of infringement of the reputation damaged by such expression, and the method and motive of such expression (see Supreme Court Decisions 2005Do5068, Oct. 14, 2005; 2001Do7095, Dec. 10, 2002, etc.).

(2) Determination

In full view of all the following circumstances and arguments, the defendant's assertion pointing this out is reasonable, unless it is determined that the defendant had an intention to defame the non-indicted 1 individual, and there is no other evidence to acknowledge the purpose of the defamation.

○ From the end of the book of this case, the Defendant expressed the following purpose of writing. The Defendant’s realistic recognition appears to be “after the Japanese colonial rule, since the Japanese colonial rule, it has not been overcomeed up until now, and thus, it is necessary to criticize the Japanese colonial rule, which was formed by academic studies, etc. in order to overcome this reality.” Thus, it is difficult to deny that the Defendant’s substantial recognition is reasonable and appropriate, at least, that the primary motive of writing the book of this case was derived from subjective purpose for the benefit of the public interest.

“지금까지 단 한 명도 자신을 식민사학자라고 고백한 사람은 없다. 이 땅의 역사학자들은 총론으로는 누구나 식민사학을 비판한다. 그러나 진짜로 식민사학을 비판하는 학자가 등장하면 온갖 수간을 써서 매장시키기 바쁜 인물로 재빠르게 변신한다. 물론 이들이 ‘식민사학을 비판했기 때문에 비난하는 것이다’라고 속내를 드러낼 정도로 순진한 사람들이 아니다. 그래서 ‘재야’니 ‘소설가’니 ‘장사꾼’이니 하는 말이 등장한다. 심지어 ‘민족주의자’라는 말까지 비난하는 용도로 사용된다. 그러면 이념 위에 학연 있는 카르텔이 즉각 가동된다. 그래서 이 땅에서 식민사관의 구조와 내용, 그리고 그 인맥을 비판하려면 상당한 모욕과 시련을 겪을 각오를 해야 한다. (중략) 그러나 이제는 이런 카르텔을 깰 때가 되었다. 이런 카르텔 때문에 21세기 백주 대낮에 ‘세월호’ 비극이 발생했고 21세기 백주 대낮에 병역 의무를 수행하던 젊은이가 병영에서 맞아죽는 비극이 발생했다. 모두 해방 후 청산당했어야 할 친일파들이 다시 정권을 장악한 가치전도에서 연유한 사건으로 필자는 확신한다.”

○○ There is no evidence to prove that the Defendant actually did not have any personal support relationship with Nonindicted Party 1, and there was no personal conflict of interest with Nonindicted Party 1. Of course, in light of the fact that Nonindicted Party 1 was in a position of influence in the so-called “Grasium” which may be said to be a alcoholic beverage in the private academia, and that the Defendant appears to be the cause of the so-called “Grasium” different position, the Defendant cannot be said to have no private interest that the Defendant may gain, such as emphasizing his existence in the private academia and enhancing the social reputation, if the Defendant criticizes Nonindicted Party 1, it cannot be said that there is no private interest that the Defendant may gain, but in light of the major purpose of the Defendant’s writing, it is considered that such a motive is relatively incidental to the Defendant’s private interest.

○ 공소외 1은 ◇◇대학교 역사교육과 교수, ☆☆☆☆☆재단 이사 등을 역임한 사람으로서 이 사건에서 문제가 되고 있는 책뿐만 아니라 “(서적명 1 생략)”, “(서적명 2 생략)” 등의 대중적인 책도 발간한 바 있다. 특히 공소외 1이 이사를 역임한 바 있는 ☆☆☆☆☆재단은 교육부 산하기관으로서 2008년부터 총 47억 원의 국가예산을 투입하여 진행된 동북아 역사지도 편찬사업 등 동북아시아의 역사와 관련된 주요한 국책사업들을 수행하고 있는 공적인 단체이다. 이처럼 공소외 1은 우리나라의 역사학계에 상당한 영향력을 행사하는 지위에 있을 뿐만 아니라 역사와 관련된 국책사업의 수행에도 중요한 역할을 담당하였고 대중적인 역사서적을 통해 일반인들에게도 작지 않은 파급력을 미치고 있는 사람으로서 폭넓은 비판과 견제가 허용되어야 하는 공적인 인물에 해당한다고 보아야 한다.

At present, in Korea, the controversy over the interpretation of the Korean Ambassador seems to have been rapidly developed in China due to the controversy over the process of North Korea in North Korea, Japan's assertion on the headquarters of the Republic of Korea, etc. In such a situation, the issue of interpreting the theory of the Naran Japan and civil society used as a material in Nonindicted Party 1's book, and the issue of overcoming the food and civil society alleged by the Defendant, as a matter of public interest with the public nature and social nature that all citizens should know, falls under the case requiring broad freedom of comment, such as active public debate.

The Defendant and Nonindicted Party 1 are scholars studying history and both of the instant books and Nonindicted Party 1’s books subject to criticism are the public books of academic character. As seen earlier, the Defendant, rather than citing the contents coming from Nonindicted Party 1’s books without any grounds, and expressed his evaluation and opinions on the implications of the books. Whether such evaluation is legitimate or not can be determined by the reader himself by comparing and verifying Nonindicted Party 1’s books. Nonindicted Party 1 also argued that his truth differs from the Defendant’s assertion. Nevertheless, Nonindicted Party 1 suggested an open debate from the Defendant after the instant books were released, but it seems that the Defendant and the Defendant of the same level as the elementary school students thought that it could not be open to the public debate and that it would not be possible to resolve the problem without any reasonable debate between scholars and academic efforts to resolve the problem through a prior debate.

○ In the instant book, the Defendant used the extreme term of “Non-Indicted 1’s act of a new term to go beyond her friendship,” “Non-Indicted 2’s act of a foreign country at the end of Non-Indicted 1’s end, not excessive criticism,” “living-friendly non-Indicted 1,” and “non-Indicted 1’s act of a foreign country or a group of the same group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group.”

As for the crime of defamation by publication, there is an additional element of “non-purpose” in the crime of defamation, rather than increasing statutory penalty by taking account of the media’s urgency, the media that is the medium that is the medium of publication, rather than increasing the statutory penalty, should be punished only when there exist the purpose of defamation. In the case of communication using publications, it seems from the consideration that guaranteeing the freedom of expression through publications widenedly and enabling a smooth formation of public opinion through free expression of opinion and its active rebuttals, criticism, and mutual debate is consistent with the principle of democracy and contributing to the development of studies. In addition, in a case where the State power excessively intervenes in the academic criticism and debate between scholars without careful consideration and imposes a imprudent punishment against either of them, the State power may reduce the active raising of the critical minorities and protect only the dominant logic of liquor, thereby preventing the opportunity for the development of science and ideas through free debate. From this perspective, the exercise of the State’s right to punishment against science and the area should be restricted as much as possible and should be interpreted as a crime of defamation as possible.

D. Judgment on the misapprehension of legal principles as to the adoption of evidence

Article 291(1) of the Criminal Procedure Act provides that "documents or articles produced by a person involved in the lawsuit as evidence or documents prepared or transmitted pursuant to Articles 272 and 273 shall be shown, explained, and examined individually in open court by the public prosecutor, the defense counsel, or the defendant." Article 292(1) of the same Act provides that "When any documentary evidence is examined at the request of the public prosecutor, the defendant, or the defense counsel, the applicant shall read them." Article 293 of the same Act provides that "the presiding judge shall notify the defendant that he/she is able to ask the opinion and request the examination of evidence necessary to protect the right of the defendant," and Article 318(1) of the same Act provides that "the documents or articles on which the public prosecutor and the defendant consented to be admitted as evidence may be admitted as evidence if it is recognized as genuine."

According to the records, on February 4, 2016, the prosecutor submitted “(written name 3 omitted)” and “(written name 4 omitted)” as reference materials from Non-Indicted 1’s book at the front of a day after the closing of argument in the court of the court below. The presiding judge of the court below asked Non-Indicted 5 present at the court on the day of the court of the court below’s ruling that there is no defense counsel. The above counsel stated that the above reference materials should be guaranteed in relation to the above reference materials by the defendant’s defense counsel present at the court of the court below. The court below can find the facts that partially cited the above reference materials in the part of the judgment as to “whether there was awareness of false facts” without mentioning the above reference materials in the summary of evidence, and thus, it was difficult for the defendant or defense counsel to fully examine them at the time of the court of the first day, and the declaration of consent to the admissibility of evidence should be based on evidence examination at the stage of the court of the court of the court below’s ruling. However, the court below did not accept the evidence evidence evidence approval or its admissibility procedure.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision is rendered

The summary of the facts charged in this case is as stated in Paragraph (2). As seen earlier, since this constitutes a case where there is no proof of a crime, the judgment of innocence is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is announced in accordance with the main sentence of Article 58(2)

Judge Cho Young-chul (Presiding Judge)