[1] The meaning of public performance in the crime of defamation

[2] The meaning of "the case concerning the public interest in the future" under Article 310 of the Criminal Code and the standard of its determination

[3] The meaning of "person reporting election crimes, etc. protected under the provisions of paragraph (1)" under Article 262-2 (2) of the Act on the Election of Public Officials and the Prevention of Election Fraud

[4] The case affirming the judgment of the court below which held that the above informant does not constitute an informant of election crimes protected under Article 262-2 (1) of the Act on the Election of Public Officials and the Prevention of Election Illegal Act in case where the police did not take protective measures such as omitting the personal information on the reporter of election crimes and the registration on the identity management card such as the informant of election crimes

[1] Public performance in the crime of defamation refers to a state in which many, unspecified or unspecified persons can recognize it. Thus, even if one person spreads facts individually, if there is a possibility of spreading them to many, unspecified or unspecified persons, the requirements for public performance are satisfied.

[2] In Article 310 of the Criminal Code, the term “the time when the publicly alleged facts relate to the public interest” refers to the public interest, when objectively seen, and an actor is also required to explicitly state the facts for the public interest, and such facts should also be objectively stated for the public interest. It includes not only the public interest of the State, society, and other general public, but also the interest and interest of a specific social group or its entire members. Whether the publicly alleged facts relate to the public interest or not should be determined by comparing and considering all the circumstances pertaining to the expression itself, including the content and nature of the relevant publicly alleged facts, the scope of the counter-party against which the relevant facts were published, and the method of expression, etc., and at the same time by comparing and comparing the degree of infringement of reputation that may be damaged

[3] In light of the legislative purpose and purport of Article 262-2 of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005), and the details and purport of the provisions of the Act on Protection of Specific Crime Informants, etc., the term "persons, etc. reporting election crimes protected under the provisions of paragraph (1)" under Article 262-2 (2) of the Public Official Election and Prevention of Election Illegal Act (amended by Act No. 7681 of Aug. 4, 2005) shall be deemed to mean persons, etc. reporting election crimes whose personal information is omitted in protocol and other documents by Article 7 of the Protection of Specific Crime Informants, etc., and whose personal information is recorded in the identity management card.

[4] The case affirming the judgment of the court below that in case where the police who received and investigated the report of election crimes by the informant did not take protective measures such as omitting the personal information on the protocol and other documents and making the registration on the identity management card such as the informant of election crimes, etc., the above informant does not constitute the reporter of election crimes protected under Article 262-2 (1) of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005)

[1] Article 307 of the Criminal Act / [2] Article 310 of the Criminal Act / [3] Articles 256(2)4 and 262-2 of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005), Articles 7 and 9 of the Protection of Specific Crime Informants, etc. Act / [4] Articles 256(2)4 and 262-2 of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005), Articles 7 and 9 of the Protection of Specific Crime Informants, etc. Act

[1] Supreme Court Decision 94Do1880 delivered on September 30, 1994 (Gong1994Ha, 2919), Supreme Court Decision 96Do1007 delivered on July 12, 1996 (Gong1996Ha, 2567), Supreme Court Decision 99Do5622 delivered on May 16, 200 (Gong2000Ha, 1468), Supreme Court Decision 2004Do340 delivered on April 9, 2004 (Gong2004Sang, 850) / [2] Supreme Court Decision 97Do158 delivered on October 9, 1998 (Gong1998Ha, 2715), Supreme Court Decision 2003Do20463 delivered on April 13, 2003, Supreme Court Decision 2004Do203640 delivered on April 26, 2004)

Defendant 1 and one other

Defendant and one other

Attorney Tae-young

Daegu High Court Decision 2004No688 delivered on March 17, 2005

Each appeal shall be dismissed.

1. As to Defendant 1’s appeal

A. Public performance in the crime of defamation refers to a state in which many, unspecified or unspecified persons can be recognized. Even if one person spreads facts individually, if there is a possibility of spreading them to an unspecified or unspecified person, the requirements of public performance should be satisfied (see, e.g., Supreme Court Decisions 94Do1880, Sept. 30, 1994; 96Do1007, Jul. 12, 1996).

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. In light of the background leading up to Defendant 1’s awareness of Nonindicted 1 and the status of Nonindicted 2 or Nonindicted 3, the other party, etc., even if Defendant 1 knew of the above facts individually to Nonindicted 2 or Nonindicted 3, the lower court determined that the performance is recognized on the grounds that there is a possibility of spreading them to an unspecified or many unspecified persons.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to the public performance due to incomplete deliberation.

B. In Article 310 of the Criminal Act, “the time when the publicly alleged facts relate to the public interest” refers to the public interest and the actor also expresses the facts for the public interest subjectively. It includes not only the public interest of the State, society, and other general public, but also the interest and interest of a specific social group or its entire members. Whether the publicly alleged facts relate to the public interest or not should be determined by comparing and comparing the contents and nature of the publicly alleged facts, the scope of the other party to whom the relevant facts were published, and the method of expression, etc., with the degree of infringement of reputation that may be damaged or damaged by the expression, considering the overall circumstances pertaining to the expression itself, such as the content and nature of the publicly alleged facts, the extent of infringement of reputation (see, e.g., Supreme Court Decisions 97Do158, Oct. 9, 1998; 2004Do3912, Oct. 15, 2004).

The court below held that Defendant 1's act of informing the same party members who are likely to spread the informants of the election crime related to himself is against the public interest to establish a fair election culture through punishment of election crimes, only the act corresponding to the personal interests of the Defendants and the persons who share interests to be investigated or punished due to Nonindicted 1's information, and that such act is against the public interest to establish a fair election culture through punishment. In light of the above legal principles and records, the judgment of the court below is proper and there is no error of law by misunderstanding the legal principles as to the public interest in the crime of defamation.

2. As to the prosecutor's appeal

A. Article 262-2(1) of the former Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005; hereinafter “Public Official Election Act”) provides that Articles 5 (Prohibition of Unfavorable Treatment), 7 (Omission of Personal Information) through 12 (Perusal of Personal Records) and 16 (Reduction of or Exemption from Punishment for Reporters, etc. of Election Crimes) of the Act on Protection of Reporters, etc. of Specific Crimes shall apply mutatis mutandis to cases where there are reasonable grounds for recognizing that the person who has reported, etc. election crimes suffers, or is likely to suffer, damage with respect to such election crimes, the provisions of Article 262-2(1) of the Public Official Election Act shall apply mutatis mutandis to the person who has reported, etc. election crimes. Article 262-2(2) of the Public Official Election Act provides for the purport that the person who has reported, etc. of election crimes shall not be disclosed to the public or other persons, in light of the purpose and purpose of Article 26-2(2) of the Public Official Election Act.

The court below held that the police who received and investigated the report of non-indicted 1's election crime does not take protective measures such as omitting the personal information on the records and other documents against the non-indicted 1 and registering it on the identity management card such as the person reporting the election crime. The non-indicted 1 does not constitute the person reporting the election crime protected under Article 262-2 (1) of the Public Official Election Act. The decision of the court below is justified in accordance with the above legal principles, and it does not err by misapprehending the legal principles on the interpretation of Article 262-2 (2) of the Public Official Election Act

B. The court below held that since 80,000 won received by Defendant 2 from Defendant 1 was paid as compensation for driving a motor vehicle by Nonindicted 4, the act of offering or receiving such money does not constitute an act of offering money or goods, etc. relating to election campaign prohibited under Article 135(3) of the Public Official Election Act, and in light of the records, the judgment of the court below is justified, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the interpretation of Article 135(3) of the Public Official Election Act.

C. According to the records, in the first instance court, Defendant 1 was sentenced to a fine of KRW 2.5 million for a crime of defamation and a fine of KRW 500,000 for a crime of defamation, and the lower court rendered a fine of KRW 1.5 million for a crime of violation of the Public Official Election Act, which was found guilty by dismissing both Defendant 1 and the prosecutor’s appeal against the crime of defamation, and thus, the lower court did not err in its judgment by separately reviewing the crime of violation of the Public Official Election Act and the crime of defamation.

3. Conclusion

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

Justices Kim Ji-hyung (Presiding Justice)