2015Do1293 Defamation

Defendant

Defendant

Present completion of Attorney

Cheongju District Court Decision 2015No131 Decided July 29, 2015

December 30, 2020

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

(B) make decisions.

1. Facts charged;

On May 14, 2014, at the defendant's office around 08:41, 2014, the defendant injured the victim's reputation by openly pointing out false facts (hereinafter referred to as "the statement of this case") by stating that, although the victim was divorced, the victim was not the disabled, and Nonindicted Party 1, who was in de facto marital relation with the victim, was not the victim's wage paid from the defendant. However, the victim's reputation was damaged by publicly pointing out the following false facts: one of the children was the disabled, but one of the children was the disabled, but Non-Indicted 1 was the victim's life.

2. Lower judgment

The court below rejected the Defendant’s assertion that Nonindicted 2 had no public performance of the instant speech, and maintained the judgment of the court of first instance that found the Defendant guilty, on the ground that Nonindicted 2 did not have a relationship to keep the content of the instant speech confidential to protect the victim’s honor or to escape the Defendant’s legal responsibility.

3. Supreme Court Decision

A. Public performance is a constituent element of the crime of defamation, and it can be deemed that a factual event against a specific minority has a flexible reason to deny a public performance. Therefore, prosecutor’s strict proof is necessary for the possibility of dissemination. If a speaker or a victim’s spouse, relative, or relative is in a private-friendly relationship with the speaker or the victim, or if the other party is in a public official or a similar position, public performance is denied where the other party is considerably expected to maintain the confidentiality of duties or status. In order to recognize a public performance in cases where the speaker and the other party and the other party are in a special relationship with the victim or where the other party have a special position or status in the performance of duties, there should be special circumstances to deem that public performance can be disseminated to an unspecified or many unspecified persons, regardless of such relationship or status (see Supreme Court en banc Decision 2020Do5813, Nov. 19, 202).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

(1) Non-Indicted 2 was in close relationship with the Defendant as an elementary school, and it appears that Non-Indicted 1 was a driver of a tourist bus company operated by the Defendant, and that he did not know the victim at all. The Defendant was only a victim who was in a de facto marital relationship with Non-Indicted 1 prior to the instant speech, and did not know the victim directly.

(2) Although the victim directly called the Defendant to receive money from Nonindicted 1 and asked the Defendant to pay wages to Nonindicted 1, the Defendant refused to do so. At the time of the instant speech, the Defendant received a telephone from the victim to the same effect, and Nonindicted 2, who was next to the victim, asked the other party to ask questions, and during the process of responding to the question, Nonindicted 1 made the instant speech based on the contents of the phone.

(3) The place of the instant speech did not have any other person than Nonindicted 2 as the Defendant’s office. The time of the instant speech was long, and the Defendant and Nonindicted 2 continued to talk about other subjects without any particular reference to the victim.

(4) Nonindicted 2 stated in the court that there was no time to speak the instant speech to others. The victim recorded the instant speech by using the state in which the Defendant’s telephone was not cut off. Examining the foregoing facts in light of the legal doctrine as seen earlier, inasmuch as the Defendant was only Nonindicted 2 at the time when the Defendant made the instant speech at the office, which was in fact likely to be denied, it is necessary to prove the prosecutor’s strict proof as to the possibility of spreading the Defendant’s speech. Moreover, in view of the relationship between the Defendant and Nonindicted 2, there is a very high level of secret security in view of the relationship between the Defendant and Nonindicted 2, there is a special circumstance to deem that the said speech can be disseminated to an unspecified or many unspecified persons, or it is difficult to see that the Defendant had an intent to deliberate on the possibility of spreading the said speech to an unspecified or unspecified person, or that there was an intent to allow the risk to radio wave to the Defendant.

Therefore, in order to determine whether the Defendant was guilty or not guilty of the facts charged of the instant case, it should be carefully considered whether the Defendant’s remarks were highly likely to be disseminated to an unspecified or many unspecified persons, even though they were made before a specific minority, by examining various circumstances, such as the details and contents of the Defendant’s remarks to Nonindicted 2, the method and place

Nevertheless, the lower court found the Defendant guilty of the facts charged without demanding the prosecutor’s certification or conducting any particular deliberation or determination on the circumstances that may recognize the possibility of performing and spreading the public performance. In so doing, the lower court erred by misapprehending the legal doctrine on the public performance of defamation, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of

4. Conclusion

The judgment of the court below is reversed without examining the remaining grounds of appeal, 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.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge