[1] Whether the crime of defamation is established in a case where the facts were based on the past or the present facts or the future days were indicated, including the assertion about them (affirmative), and the criteria for its determination

[2] The case holding that it constitutes a statement of facts in the crime of defamation on the ground that it can be seen that a police officer who investigated a case was not detained in the prosecutor's office because it was based on the present fact or it can be seen that a future work was made, including a claim against the police officer, even though a genuine case was closed due to the fact that a police officer who investigated the case was not recognized as a suspect of defamation

[1] In order to establish defamation, a statement of fact must be made. Here, a fact that is the subject of a statement refers to the past or present fact that may actually occur and prove, and even if a day is indicated in the future, if it is based on the past or present fact or contains an assertion against it, defamation shall be established. Whether a statement of day in the future is based on the past or present fact or includes an assertion against it shall be determined by comprehensively taking into account the overall purport or content of the statement itself as well as the overall purport or contents of the statement, the circumstances leading to the statement, its situation, and all other circumstances.

[2] The case holding that it constitutes a statement of facts in the crime of defamation on the ground that it can be seen that a police officer who investigated a case was not detained in the prosecutor's office because it was based on the present facts or can be seen as indicating a future day including its assertion, and thus, it constitutes a statement of facts in the crime of defamation

[1] [2] Article 307 (2) of the Criminal Code

Defendant

Prosecutor

Daegu District Court Decision 2002No634 delivered on December 6, 2002

The non-guilty portion of the lower judgment is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The remaining grounds of appeal are dismissed.

We examine the grounds of appeal.

1. As to the non-appeal

According to the court below's decision, the court below acknowledged facts as stated in its decision, and found the defendant not guilty of this case's non-appeal since the highest heat, which was the forest and staff members of the Gyeong Viewers Forest reported, was mistakenly investigated about the time when the forest damage was made in around 1996, even though the non-indicted 1 damaged the forest illegally, and thus, the defendant's submission of the defendant's petition pointing this out does not constitute a false fact but an objective fact-based accusation. In light of the records, the part concerning the preparing body of the protocol among the fact-finding of the court below's fact-finding is not somewhat erroneous, but it is just in its conclusion that the defendant's petition is based on objective facts and does not constitute a false accusation, and there is no error of law of misunderstanding of facts due to a violation

2. As to defamation

The summary of this part of the facts charged is that the defendant damaged his reputation by publicly pointing out false facts by openly pointing out false facts in the office of the second auditor of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the defendant, in spite of the fact that the appeal against the victim 1 was not acknowledged as a suspicion and the office of the office of the

In regard to this, the court below found the Defendant not guilty of the defamation of this case on the ground that the crime of defamation by false accusation requires a statement of fact, and that the facts refer to the past and present state that can be actually occurring and proved, and that the statement of fact in the future can only be stated in the statement of fact. However, it appears that "the defendant's statement of fact" is a statement of fact in the future, and that it is not possible for the prosecutor to claim a warrant of detention or be identified as it is in the current investigation, and it is difficult to view that there is an assertion of fact in the present situation. This is difficult to say that there is an assertion of fact in the present situation. This is merely a statement of the fact that the Defendant would decrease the victim 1, the victim 2, or the victim 1, or the victim 2 is likely to be subject to criminal punishment, because the statement of fact is expressed in the value judgment of the victim 1 and the victim 2.

In order to establish defamation, a statement of fact must be made. Here, a fact that is the object of a statement refers to the past or present fact that may actually occur and prove, and even if a statement of fact in the future is made, if it is based on the past or present fact or contains any assertion against it, defamation shall be established. Whether a statement of fact in the future is based on the past or present fact or includes any assertion against it should be determined by comprehensively taking into account the overall purport or content of the statement itself as well as the overall purport, circumstances leading to the statement, and the situation before and after, and after, the statement of fact.

In the instant case, the record reveals that the Defendant filed a civil complaint with Nonindicted Party 1, etc. from several years prior to the commencement of the dispute, and then filed a civil complaint at any time at the police station, Do office, and viewing place, and filed a civil complaint against the public official in charge of the instant case. The Defendant filed a civil complaint against the victim 1, who was a police officer in charge of his criminal case, around the time of defamation of the instant case, and the police instructed him/her on August 14, 201 as to whether he/she was indicted or not. The Defendant stated that he/she had been detained by the Defendant at the Gyeongdo Office, which is the place where the instant crime was committed, or that he/she stated that he/she had been detained by the public prosecutor, and that it was only 10 times before and after the fact that he/she stated that he/she had been detained by the public prosecutor or she had expressed his/her opinion on the same facts as the Defendant stated in the above facts charged, and that it was only 20 times before and after the public prosecutor’s notice."

Nevertheless, on the ground that it is difficult to see that a statement by a defendant contains an argument about the present fact, the court below judged that the above facts charged per se does not constitute a crime and affirmed not guilty. Accordingly, it is erroneous in the misapprehension of legal principles as to the statement of fact in defamation, thereby affecting the conclusion of the judgment. The prosecutor's ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment of the court below regarding defamation is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)