(영문) 대법원 2021.3.25. 선고 2017도17643 판결

1. The facts charged of this case are as follows: (a) the article of the victim’s “B” (hereinafter “the article of this case”) was published in the D column of “C” on the Internet portal site; (b) the Defendant posted a letter of “Net Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don Don

The lower court, on the grounds indicated in its reasoning, convicted the instant facts charged.

2. However, we cannot accept the judgment of the court below as it is. The reasons are as follows.

A. The term “defluence” in the crime of insult refers to the expression of an abstract judgment or sacrific sentiment that could undermine a person’s social assessment without mentioning facts (see, e.g., Supreme Court Decision 2016Do9674, Oct. 13, 2016).

However, even in cases where a certain article contains insulting expressions, on the premise that such expression is objectively reasonable, if it is merely a use of partially insulting expressions in the process of emphasizing that the relevant facts or the victim’s attitude, etc. are reasonable, then the illegality may be avoided pursuant to Article 20 of the Criminal Act as an act that does not contravene social norms (see, e.g., Supreme Court Decisions 2003Do3972, Nov. 28, 2003; 2005Do1453, Dec. 23, 2005). Even if an insulting expression is included in a short text on a bulletin board, etc. that shares opinions on a specific issue, such an expression should be deemed unlawful as it is an act that mainly emphasizes the victim’s opinions on the objective basis of the objective validity of the expression, or that it does not contravene social norms, and thus, it should be deemed unlawful as an act that does not violate the victim’s own intent or other reasonable social norms.

B. The record reveals the following facts.

1) In general, the e-mailing system is referred to as EPS (Electrical Posing). The E-group refers to F. Meanwhile, there was a lot of controversy over the safety of the F, and the G press broadcast the F-type suspicion of the defects in the “H” Part.

2) Around that time, the victim, who is a reporter belonging to the Internet newspaper company related to automobile information, prepared the instant article under the title “B”, and the said article is going to clarify the advantages of general ES. In the “C” website D column where the instant article is published, there was a column for 'Non Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon P on which the readers

3) The expression "Neth Pison Pison" has been posted more than 1,00 comments related to the article of this case, and the comments on the comments of this case have been registered before and after the comments of this case.

A) Even if the Dogre thickness and all advantages of the Dogre are actually existing, the driver should have bringed and Hand during driving so that the driver would not be able to cause a threat to his life... The driver should d's d't d't in favor of the company or in favor of the company, but not in favor of the driver or consumer.

B) Accordingly, "each PES has a relative flocks only. It is called cocks that there is no meaning that what ccocks are good and bad." It will be put to clock.... I will put ePS entering J... where it was put into K?? It has been put into cPS which was put into K?

C) It is confirmed on the E Official Brops. It was written off without complete for this case. The E-Wal parts can be repaired only by those who visit the E-Wal parts with knowledge of the causes of noise generation, not from any one to any one, and who visit the Hand, not from the one to the other. Whether the life is hot enough to continue this company’s vehicle as security?

d) H Reporting also H. H. H. H. H. H.

C. We examine the above circumstances in light of the legal principles as seen earlier.

1) The term “rain” written by the Defendant in the comments of this case is a composite term of “a reporter” and “waste”, and is a term of debrising the behavior of reporters or reporters who prepare promotional articles due to extreme title, content, etc., and thus, it constitutes an insulting expression, in which the Defendant expressed an abstract judgment or anti-destructive sentiment that could undermine the social evaluation of the reporter, etc.

2) However, the Defendant’s act of writing the instant comments is an act that does not contravene social norms, and the illegality is excluded pursuant to Article 20 of the Criminal Act. The reasons are as follows.

A) readers have prepared the column for 'Neth Ponon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon Pon

B) The instant article was posted as a title to defend F in a lot of controversy over F’s safety, and on the other hand, many of the contents were revealed the advantages of general EPS. The G press immediately before the instant article is published broadcast through “H”, and a large number of readers who read the instant article were expected to defend or publicize the F of the instant article based on the advantages of general EPS, etc. based on the contents of the broadcast, etc. as seen above, posted comments containing an opinion to criticize the title and contents of the instant article, and the act or attitude of the victim prepared. Accordingly, such opinions can be seen as based on objective and reasonable circumstances.

C) In light of the contents, timing and location of the instant comments, the contents and flow of other comments posted before and after the instant comments, etc., the instant comments may be evaluated as emphasizing or compressioning the opinions criticisming the title and content of the instant articles, and the acts and attitudes of the victims who prepared the comments, based on the content of the broadcasts, etc., from the same perspective as those of other comments posted before and after the instant comments. In addition, in comparison with the arguments and contents of the instant comments on the instant articles, the term “rails” is relatively widely used in criticism of news articles and reporters’ behavior, and it is difficult to say that the expression of the instant comments is excessively malicious.

3. Nevertheless, the lower court convicted the Defendant of the facts charged as seen earlier. In so determining, the lower court erred by misapprehending the legal doctrine on the offense of insult, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is with merit

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.