[1] The elements for establishing defamation under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (=public prosecutor)

[2] The meaning of "a statement of fact" in the crime of defamation under Article 61 (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the standard for determining whether a statement of fact constitutes "a false fact"

[3] The meaning of “the purpose of slandering people” in the crime of defamation under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the standard for determining whether the alleged facts are for the public interest

[1] Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007; see current Article 70(2)); Article 307(2) of the Criminal Act; Article 308 of the Criminal Procedure Act / [2] Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007; see current Article 70(2) of the former Act / [3] Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007); Article 309(1) of the Criminal Act

[1] [3] Supreme Court Decision 2009Do12132 Decided November 25, 2010 (Gong2011Sang, 70) / [1] Supreme Court Decision 2007Do5836 Decided January 30, 2009 (Gong2010Ha, 2219) decided October 28, 2010 / [2] [3] Supreme Court Decision 2003Do2137 Decided April 29, 2005 (Gong2005Do8310 Decided February 12, 2009) / [2] Supreme Court Decision 2008Do6310 Decided July 13, 2007 / [3] Supreme Court Decision 2006Do6310 Decided 20535, May 2015

Defendant

Prosecutor

Suwon District Court Decision 2010No4891 decided January 6, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. Ground of appeal No. 1 - Whether the “false fact” was revealed

Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. provides that “a person who defames another person by revealing any false information openly through an information and communications network for the purpose of defameing another person” and Article 70(1) of the same Act provides that “a person who defames another person by openly revealing any fact through an information and communications network for the purpose of defameing another person.” As such, the elements constituting a element of determining whether the content posted on an information and communications network by a defendant constitutes “a false fact” or “fact” is applicable to the information and communications network. Therefore, in a case where a defendant is prosecuted for indictment under Article 70(2) of the same Act, the court should first clarify whether the content posted by the defendant on

Meanwhile, in order to establish defamation by publicly alleging false facts through an information and communications network under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778, Dec. 21, 2007; hereinafter the same) and defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, the facts should be false. In addition, if the defendant alleged such facts, he/she must be aware that the facts were false in publicly expressing the facts, i.e., awareness of false facts, the burden of proof of criminal intent is borne by the prosecutor (see Supreme Court Decisions 2007Do5836, Jan. 30, 2009; 2009Do4949, Oct. 28, 2010; 2009Do497, etc.). In addition, if the aforementioned part is somewhat short of the expression of facts or its expression of objective facts, it can be seen as an expression of facts or its expression of objective facts.

According to the reasoning of the judgment below, the first instance court and the evidence duly admitted by the court below, although the victim did not have served as the representative director of the non-indicted corporation (hereinafter referred to as "the non-indicted corporation"), the victim went to the name "the representative director of the ○○○○○○ Book" and introduced himself to the defendant, etc. as the representative director of the ○○○○○ Book. The victim knew that the victim was the representative director of the ○○○○○○○ Book, and let the defendant recommend the victim as the joint representative of the △△△△△△△△△△△△△△△△△ citizens Joint (hereinafter "the organization of this case"), and let the victim take full-time representative director of the △△△△△△△△△△△△△△△△△△△△△△△ (hereinafter "the organization of this case") and did not clearly indicate the fact that the victim was expelled from the organization of this case. However, in the court of first instance of this case, the victim testified the victim's testimony as the representative director of the corporation.

Examining the above facts in light of the legal principles as seen earlier, insofar as the victim did not actively notify the fact regarding the social status of the representative director of the ○○○○○○○ Daily, even though he did not have served as the representative director of the ○○○○○○○○○○ Daily, the Defendant’s statement of the fact, in mind, cannot be deemed as constituting “false fact-finding” under Article 2(2) of the above provision, and even if examining the record, it is difficult to view that the prosecutor proven that there was a false perception that the above alleged fact was false at the time of the act

In addition, the prosecutor argues that the statement that "the expulsion disposition was made" was not effective because it did not go through due procedures prescribed in the articles of incorporation, and thus, it is false. However, this part of the grounds of appeal is related to whether this part of the grounds of appeal was followed by adequate procedures prescribed in the articles of incorporation, and it merely criticizes the selection of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below, which is a fact-finding court,

The ground of appeal on this point is without merit.

2. Ground of appeal No. 2 - In relation to the public interest

“Purpose of slandering a person” under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) refers to “the purpose of slandering a person” under Article 309(1) of the Criminal Act, as well as “the purpose of slandering a person,” and thus, for the sake of public interest, there is a conflict of purpose with one another in the direction of subjective intent of the actor. Thus, unless there are special circumstances, if the alleged fact concerns public interest, it is reasonable to deem that the objective of slandering a person is denied. Here, “where the alleged fact concerns public interest” refers to public interest and should be expressed for subjective public interest and should also include not only the public interest of the State, society and other general public, but also the public interest and interest of a specific group or the whole members thereof. Whether the alleged fact pertaining to public interest belongs to the public interest or not belongs to public interest, such as defamation or public interest, etc. (see Supreme Court Decision 2000, public interest or public interest, etc.).

The reasoning of the judgment of the court of first instance and the evidence duly admitted by the court below: (a) the defendant recommended the victim as a joint representative of the organization of this case with the knowledge that the victim was the ○○○○○ representative director, and had the victim take office as a full-time representative. Since the environmental organization of this case, whether the victim was the ○○○ representative director is the victim's joint representative director or full-time representative of the organization of this case, it appears that the defendant had worked as a critical factor in recommending the victim as a joint representative or full-time representative of the organization of this case; (b) however, if the victim spreads false facts, even though the ○○○ representative director is not the ○○○ representative director, it is deemed that the facts relate to the interest and interest of the entire organization of this case and its members; and (c) the victim did not directly criticize the defendant as the ○○ representative director even if not the ○○ representative director was the ○○ representative director, and thus, the defendant could not be deemed to have made a false statement or false statement of facts.

Ultimately, the court below erred in omitting judgment as to this part by concluding that the existence of the reason for expulsion is only a matter of existence of the reason for expulsion, but cannot be deemed a false fact in the defamation of this case, but such omission of judgment cannot be deemed as a violation of the law that affected the judgment of this case, and there is no error of law by misapprehending the legal principles as to the purpose of defamation as otherwise alleged in the ground of appeal.

On the other hand, the court below acknowledged the circumstances as stated in its holding with regard to the part of the statement that stated the fact that “the victim was expelled,” and determined that the alleged fact was related to the public interest of adequate operation of the organization of this case, and that there was no other evidence to acknowledge it otherwise.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, we affirm the lower court’s aforementioned determination as to the part of publicly alleging the fact that “the victim was expelled.” In so doing, it did not err by misapprehending the legal doctrine on the purpose of defamation, as otherwise alleged in the ground of appeal.

The argument in the grounds of appeal on this point is not acceptable.

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)