Whether the State or a local government can be a victim of defamation or insult (negative)

The external reputation, which is an assessment of the value of a person who intends to protect by punishing a crime of defamation or insult, is an individual legal interest. As such, the State or a local government, which is the exercise of public authority, who has the responsibility and duty to protect or realize the fundamental rights of the people, is not the subject of fundamental rights, but the subject of fundamental rights. Matters pertaining to policy decision-making and performance are always subject to broad surveillance and criticism of the people. Such surveillance and criticism can be performed normally only when the freedom of expression is sufficiently guaranteed. As such, the State or a local government cannot be the subject of external reputation protected by means of criminal punishment in relation to the people, and therefore cannot be the victim of defamation or insult.

Article 21 of the Constitution, Articles 307 and 311 of the Criminal Act, Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Defendant

Defendant

Seoul Central District Court Decision 2014No2406 decided October 24, 2014

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

1. We examine ex officio the grounds of appeal as to the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (Defamation) and the insult part of the said Act with respect to Go Interest Group.

A. The external reputation, which is an assessment of the value of a person who intends to protect by punishing a crime of defamation or insult, is an individual legal interest and is not the subject of fundamental rights, but the State or a local government, which is the exercise of public authority, who has the responsibility and duty to protect or realize the fundamental rights of the people. Matters related to the decision-making or performance of such duties are always subject to broad surveillance and criticism of the people. Such surveillance and criticism can be performed normally only when the freedom of expression is sufficiently guaranteed. Thus, the State or a local government cannot be the subject of external reputation protected by means of means of punishment in relation to the people. Accordingly, the State or a local government cannot be the victim of defamation or insult.

B. For the reasons indicated in its reasoning, the lower court determined that the Defendant damaged and insulting the honor of the High Promotion Group by posting false content or inserting an supplic expression against the High Promotion Group for the purpose of slandering the High Promotion Group on the website of the High Promotion Office, and upheld the first instance judgment convicting all of the charges of violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation) and insult against the High Promotion Group among the charges of this case.

However, in light of the aforementioned legal principles, the court below erred by misapprehending the legal principles as to the crime of defamation and the crime of insult, and thereby adversely affecting the conclusion of the judgment, on the erroneous premise that the local government is able to become a victim of defamation or insult, and on the erroneous premise that the local government is able to become a victim of such defamation or insult.

2. We examine the grounds of appeal as to the insult of the Nonindicted Party.

On the grounds indicated in its reasoning, the lower court affirmed the first instance judgment convicting the Nonindicted Party of insult part of the facts charged in the instant case, on the grounds that: (a) the Defendant’s publication on the homepage of the High Military Office expressed an anti-defasible intent to an individual, who is the head of the High Military Office; and (b) the offense of insult against the Nonindicted Party was established; and (c) the Defendant’s act cannot be deemed as widely permissible in light of social norms or as

Examining the reasoning of the lower judgment in light of the evidence, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the grounds for excluding the illegality of insult or by misapprehending the rules of logic and experience.

3. Of the lower judgment, the part of the lower judgment on the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation) and the insulting part of each of the insulting part of the lower judgment is reversed for the same reason. However, the first instance judgment maintained by the lower court rendered a single sentence on the grounds that the respective parts and the remaining criminal facts are concurrent crimes or ordinary concurrent crimes under the former part of Article 37 of the Criminal

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court 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 Lee Ki-taik (Presiding Justice)