[1] The standard for determining the public performance in the crime of defamation

[2] Whether the crime of defamation is established in a case where defamation facts were discovered in response to questions as to whether the facts of defamation were discovered (negative)

[1] Article 307 of the Criminal Code / [2] Article 307 of the Criminal Code

[1] Supreme Court Decision 2004Do340 Decided April 9, 2004 (Gong2004Sang, 850) Supreme Court Decision 2007Do6014 Decided December 13, 2007 / [2] Supreme Court Decision 83Do1017 Decided August 23, 1983 (Gong1983, 1450)

Defendant

Prosecutor

Suwon District Court Decision 2008No791 decided July 1, 2008

The portion of defamation by facsimile of July 11, 2006 among the judgment below is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the injury

Examining the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant of this part of the charges on the ground that it is difficult to recognize that the use of force to the extent recognized by the statement of non-indicted 1 in a relatively neutral position has inflicted an injury on the part of the victim due to the assault by the defendant. This decision of the court below is justified in light of the records as it is based on the reasonable free evaluation of the judge of the fact-finding court,

2. As to defamation

A. As to the damage of honor by facsimile on July 11, 2006

The term "public performance", which is the constituent element of the crime of defamation, refers to the state in which many and unspecified persons can be recognized, and even if one person spreads facts individually, if there is a possibility of spreading facts to many and unspecified persons, the propagation of facts to a specific person can be achieved if it satisfies the requirements of public performance (see, e.g., Supreme Court Decisions 96Do1007, Jul. 12, 1996; 99Do5622, May 16, 200). Meanwhile, in a case where the public performance of defamation is recognized on the ground of the possibility of radio waves, there is a need for doluence as a subjective element of the constituent element of the crime. Thus, in a case where the public performance of defamation is recognized on the ground of the possibility of dissemination, not only is the awareness of the possibility of dissemination, but also it is necessary to have the intention of a review to allow such danger, and if it is possible for the general public to spread on the basis of the external form of the act and the situation of the act.

According to the records, even if the defendant was dismissed at the extraordinary general meeting of Suwon Franchisium management body (hereinafter "the management body of this case"), and the victim was elected as a new manager at the time of the extraordinary general meeting of September 28, 2005, the defendant filed an application for provisional disposition of suspension from office against the victim on June 1, 2006 and the victim filed an objection against the provisional disposition on June 8, 2006. The victim did not raise an objection against the provisional disposition as to the above provisional disposition on July 3, 2006. The defendant again elected the victim as a manager at the extraordinary general meeting of the management body of this case, which was held on July 3, 2006, at the time of the above provisional disposition, and the defendant did not hear the facts that the defendant sent the above provisional disposition to the non-indicted 1's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 1's victim's non-indicted 1's non-indicted 3 criminal records.

Nevertheless, the court below affirmed the judgment of the court of first instance that acquitted the defendant of this part of the charges on the ground that the defendant acknowledged the possibility of spreading through the non-indicted 1, but could not be deemed to have transmitted a document to the non-indicted 1 with the intent to accept the risk, and there is no other evidence to acknowledge the public performance. Such decision of the court below is erroneous in the misapprehension of legal principles as to the public performance in the crime of defamation, which affected the conclusion of the judgment. The grounds of appeal pointing this out

B. As to the damage of honor by presenting the document on July 11, 2006

The court below affirmed the judgment of the court of first instance that acquitted the defendant of this part of the facts charged on the grounds that the statement of the victim alone is insufficient to recognize the fact that the defendant displayed the documents containing the contents that harm the reputation of the victim to the non-indicted 2, and there is no other evidence to prove this otherwise. The argument in the grounds of appeal disputing this point is nothing more than the argument that the court below erred in the misapprehension of legal principles on the premise of facts different from the facts acknowledged by the court below, or that the judgment of the court below was erroneous in the misapprehension of legal principles on the premise that there is a fact different from the facts

C. As to defamation as of August 19, 2006; the 22th of the same month; and the 23th of the same month

If the facts that harm another person's reputation have been discovered in the course of responding to the question as to whether the facts of defamation were true or not, the crime of defamation cannot be acknowledged in light of the content and motive of the expression, and simple confirmation answer to questions cannot be said to be a factual expression as referred to in defamation (see Supreme Court Decision 83Do1017, Aug. 23, 1983).

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance that found the defendant not guilty of this part of the facts charged on the ground that it is not a statement of fact in the crime of defamation because the victim's criminal record was confirmed in light of the circumstances of the statement, or the reporter who confirmed the truth of the victim's criminal record or a statement of fact in the crime of defamation cannot be deemed a statement of fact because it was merely a passive statement of confirmation, and it is not a statement of fact in light of the above legal principles and records, and it is just in light of the above legal principles and records, and there is no error of law such as violation of the rules of evidence and misapprehension of legal principles as to the statement of fact in the crime of defamation, contrary to the allegations in the grounds of appeal.

3. Conclusion

Therefore, among the judgment below, the part of defamation by facsimile of July 11, 2006 of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)