The burden of proving the falsity of the alleged fact in the crime of defamation by a publicly alleging false facts and the burden of proving the false perception (=public prosecutor) / Whether such a legal doctrine applies likewise to determining whether the act of expressing false facts constitutes the crime of interference with business by means of spreading false facts or by fraudulent means (affirmative)

Articles 307(2) and 314(1) of the Criminal Act; Article 308 of the Criminal Procedure Act

Supreme Court Decision 99Do3213 Decided October 22, 1999 (Gong199Ha, 2451) Supreme Court Decision 2006Do1580 Decided September 8, 2006 (Gong2006Ha, 1711) Supreme Court Decision 2009Do4949 Decided October 28, 2010 (Gong2010Ha, 2219) Supreme Court Decision 2012Do13718 Decided September 4, 2014 (Gong2014Ha, 2076)

Defendant

Defendant

Daejeon District Court Decision 2016No203 Decided June 30, 2016

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

The grounds of appeal are examined.

1. In a case where the facts constituting the elements of a crime charged in a criminal trial are charged with defamation by a false statement under Article 307(2) of the Criminal Act, the prosecutor must prove that the alleged facts do not conform to the objective truth and are false, and that the Defendant was aware of the alleged facts (see, e.g., Supreme Court Decision 2012Do13718, Sept. 4, 2014). The foregoing legal doctrine likewise applies to determining whether the alleged facts constitute a crime of spreading false facts or interference with business by fraudulent means under Article 314(1) of the Criminal Act (see Supreme Court Decision 2009Do4949, Oct. 28, 2010). In such a case, whether the alleged facts are false or not should be determined by examining the overall purport of the alleged facts, and where the alleged facts are somewhat different from the objective facts, it should be determined by examining the overall purport of the facts, and even if it is somewhat different from the objective facts, it can be determined that the alleged facts are 290.

2. The facts charged of this case are as follows. In other words, the Defendant: “○○○○○ and Nonindicted 2’s wife were pregnant and given birth-related outpatients at the △△△ Hospital operated by Nonindicted 1, and only the Defendant was imminent, Nonindicted 3, 4, and 5 gave birth to Nonindicted 2 in the process of giving birth at the △△△△ Hospital and the hospital operated by △△△△△△△△, Nonindicted 2 got an excessive surgery, and received treatment by cutting down the dub of the child who was given birth, and was unable to receive the compensation claimed by the Defendant.” On the other hand, the Defendant’s treatment of the hospital that opened the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△’s disease at the time of carrying out the aforementioned △△△△△△△△△△△△△△△△△△△△△△△’s disease without any reason attributable to the above hospital’s negligence.

As to this, the lower court upheld the first instance judgment that found the Defendant guilty of all the charges of this case on the ground that the fact that the Defendant stated in the diskettes was false.

3. However, we cannot accept the judgment of the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

① The Defendant’s wife and Nonindicted 2 received the outpatients related to pregnancy and delivery from the ○○○ △△△△△△△△△△△△△△△△, operated by Nonindicted 1, and gave birth to Nonindicted 3, etc., and during that process, the Defendant’s medical records on Nonindicted 2 with the △△△△△△△△△△△△△△△△△△ was delivered to the △△△△△△△

② However, according to the ○○○ Hospital’s result of the primary test on Nonindicted 2, the size of the fetus’s head was shown in the number of pregnant women every time more than the average size of the fetus’s average head. According to the result of the primary test on February 3, 2014, which was measured on February 3, 2014 (the 38th day of pregnancy), the head diameter of the fetus is 8.71cm (the 35th day), the 7.27cm (the 37th day), the average length of the fetus is 7.27cm (the 37th day), the expected body is 3,279g, and the head was 38 weeks of pregnancy, but the size of the fetus was 3 weeks or more than the average size of the general fetus. The result of the primary test on the △△△△△△△△ after measuring the △△△△△△△△△△△△△△△△△△, the Defendant’s visit and treatment of the fetus cannot be confirmed.

③ 공소외 2는 2014. 2. 8. 12:52경 견갑난산으로 회음부 절개술을 받아 태아를 출산하였고, 산모 밖으로 나온 아이는 쳐진 상태에서 한동안 자가 호흡을 하지 못하다가 지속적인 자극에 울기 시작하였는데 그 시간은 5분 이내였던 것으로 보인다. 위와 같은 과정에서 공소외 2는 과다출혈로 ☆☆☆☆☆병원에서 자궁적출수술을 받기에 이르렀고, 태어난 아이는 쇄골이 골절되어 다음날인 2014. 2. 9. 17:00경 ◇◇◇◇병원으로 전원되었다. 당시 피고인은 ☆☆☆☆☆병원으로 전원된 공소외 2와 함께 있었던 관계로 □□△△산부인과에 전화를 하거나 자신의 모친과 장모를 □□△△산부인과로 보내 아이의 상태를 확인하도록 하였다.

(4) In cases of stove acids, an embryo may cause damage to a stove plant gun, a stoves, stoves, etc. to a fetus.

⑤ 피고인이 이른바 1인 시위를 하면서 들고 있던 피켓에는, 공소외 2가 겹간난산으로 태아를 어렵게 출산하고 그 과정에서 태아가 5분 정도 자가 호흡을 못하다가 뒤늦게 울음을 터트린 사실, 공소외 2가 과다출혈로 ☆☆☆☆☆병원으로 전원하였으나 절차가 지연되어 ☆☆☆☆☆병원 응급실에 도착한 지 4시간 20분 만에 자궁적출수술을 받은 사실, 출생한 아이가 걱정되어 □□△△산부인과 측에 신경을 써달라고 하였으나 적절한 조치가 이루어지지 않다가 출산 후 만 28시간이 지난 뒤에야 쇄골 골절을 인정하고 ◇◇◇◇병원으로 전원조치한 사실, 공소외 2의 경우 수술 후에도 재출혈로 다시 수술을 받았고 그 과정에서 수혈을 50여 팩이나 받은 사실 등이 시간적 순서대로 적혀 있다.

B. Examining the above facts and the following circumstances revealed therefrom in light of the legal principles as seen earlier, it is difficult to readily conclude that the Defendant was false to enter the name in the PPet.

In other words, the medical records, such as the result of the early strike test with the ○○ △△△△ Director, do not stipulate that the shoulder of the fetus is broad. However, while the size of the fetus was smaller than the average size of the fetus in general, the size of the fetus was smaller than at least three weeks, on the other hand, since the length, weight, etc. of the fetus was normal, the Defendant, who did not have expertise in medical science, could have considered that the fetus was relatively larger than the head of the fetus.

Furthermore, it is confirmed that the △△△△△△△ was the fluoral aggregate, and 28 hours have passed since the birth to the hospital, and considering the fact that in the case of the protegic acid, the fetus might be exposed to the △△△△△△△△, etc., the phrase “a statement that he would not use one arms is neglected although he sent the statement to the hospital that he would not use it, or that the statement that he would have been thoroughly managing the protegic fetus was a false statement,” shall not be deemed to be a somewhat exaggerated expression, and the entire purport of the statement together with the above cannot be deemed to be inconsistent with the objective facts.

C. Nevertheless, the lower court, solely based on its stated reasoning, determined that the Defendant, by publicly expressing and spreading false facts, damaged the reputation of the hospital operated by the victims and interfered with the operation of the hospital operated by the victims at the same time. In so doing, the lower court erred by misapprehending the legal doctrine on defamation by publicly alleging false facts and the crime of interference with business by spreading false facts, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit. Furthermore, according to the facts charged in the instant case, even though the victim was identified as four, including Nonindicted 1, the victim was merely described as the hospital, without specifying whether he was either the ○○ △△△△△△ Party and the △△△△△△△ Party and one between the △△△△△ Party and the △

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

Justices Kwon Soon-il (Presiding Justice)