[1] The meaning of "act which does not violate social rules" under Article 20 of the Criminal Code, and the elements for establishing a legitimate act

[2] The case holding that the act of hiding or damaging a notice on re-election in the name of the apartment election commission does not constitute a justifiable act

[3] Whether the act of offering false articles to newspaper reporters for the purpose of slandering others constitutes defamation by publication under Article 309(2) of the Criminal Act (affirmative)

[4] Relation to Articles 309(1) and 310 of the Criminal Code

[1] Article 20 of the Criminal Code / [2] Article 20 of the Criminal Code / [3] Article 309 (2) of the Criminal Code / [4] Articles 307 (1), 309 (1), and 310 of the Criminal Code

[1] Supreme Court Decision 99Do4273 delivered on March 10, 200 (Gong2000Sang, 997) Supreme Court Decision 98Do2389 delivered on April 25, 200 (Gong2000Sang, 1345) Supreme Court Decision 2000Do4415 Delivered on February 23, 2001 (Gong2001Sang, 813), Supreme Court Decision 2002Do507 delivered on December 26, 2002 (Gong203Sang, 5555) (Gong2003Do300 delivered on September 26, 200 (Gong203Ha, 2132) / [3] Supreme Court Decision 2003Do9819 delivered on April 35, 1994 (Gong209Do57989 delivered on April 26, 2005)

Defendant

Defendant

Seoul District Court Decision 2003No5364 Delivered on August 27, 2003

The appeal is dismissed.

1. As to the violation of the Punishment of Violences, etc. Act

"Acts which do not violate social rules" under Article 20 of the Criminal Code refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms in its hinterland. Whether certain acts constitute legitimate acts that do not violate social norms and thus, the illegality of which is excluded should be determined individually and reasonably under specific circumstances. Thus, in order to recognize such legitimate acts, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interest and the infringed interest; (iv) balance between the protected interest and the infringed interest; and (v) supplementary nature that there is no other means or method other than the act (see Supreme Court Decision 2003Do3000, Sept. 26, 2003).

The court below acknowledged, based on its adopted evidence, that the defendant concealed and damaged the notice of re-election in the name of the 1st apartment election commission and the notice, and held that the defendant did not raise any objection to the decision of the 12th apartment apartment apartment election commission to commission the head of the Tong to the members of the election commission to manage the 12th apartment apartment election, but only if the election commission decided to invalidate his election, the decision of the 12th apartment apartment election commission did not take effect on the ground that there is a problem of the qualifications of the election management members, and that the decision of the election commission did not take effect on the ground that the above election commission's election was valid, and that there was no violation of the rules of evidence and the legal principles as to the relation between the defendant and the 12th election commission, or the defendant's act of finding facts and facts after the election did not constitute an unlawful act of the 12th election commission, even though some expressions of the above notice contain the negative contents against the defendant.

2. As to defamation by publication

Based on the evidence of employment, the court below pointed out that the defendant's use of the proceeds from the posting of the ordinary advertising materials is without any provision and there are many doubtful parts of the usage. The fact that the auditor of the tenant representative meeting has continuously pointed out the problems about the management of the apartment as the auditor of the management office, such as requesting the disclosure of the use of the amount of KRW 400,000,00, which was set at the expense of the management office. However, there is no evidence to prove that the election commission invalidated the representative election in order to prevent the defendant from conducting such audit activities. Rather, in full view of all the circumstances such as the relationship between the defendant and the election commission, the progress of the 12th representative election, and the situation after the election, it is difficult to view that the defendant was merely a side of the defendant and that there is a considerable reason for the defendant to be caused by such trend.

In the event that material of a false article is provided to a newspaper reporter for the purpose of slandering another person, whether or not to publish a article on a newspaper belongs to the authority of the editor. However, since an editor posted such material on a newspaper, as long as the editor posted it on a newspaper, it is attributable to the act of a person who provided articles, the act of supplying a newspaper material cannot be exempted from the crime of defamation by publication under Article 309(2) of the Criminal Act (see Supreme Court Decision 93Do3535 delivered on April 12, 1994).

Therefore, if the defendant explains false facts and provides materials about the circumstances during which the election was invalidated even after the defendant was elected in the representative election in order to defame the victim, and if the defendant had a reporter who made the contents true and published a false article in the ship report, this meets the elements of the crime of defamation in publications, and thus, the judgment of the court below that the defendant constitutes the same crime is justified, and there is no violation of law by misunderstanding the legal principles as to the elements of the crime of defamation in publications.

On the other hand, Article 309 (1) of the Criminal Code requires the intention or purpose of a hazard, and it is in conflict with one another in the direction of subjective intention of an actor as well as for the public interest. Thus, in the case of the public interest under Article 310 of the Criminal Code, the provision that no punishment shall be imposed does not apply to acts under Article 309 (1) of the Criminal Code that require the purpose of slander, and it is applicable only to acts under Article 307 (1) of the Criminal Code that do not require the purpose, and in the case of the alleged fact related to the public interest, it is reasonable to view that the purpose of slandering is denied unless there are any special circumstances. Therefore, the establishment of the crime of defamation under Article 307 (1) of the Criminal Code can be an issue of whether the crime of defamation under Article 310 of the Criminal Code is established, and it can again be an issue of whether there is illegality under Article 310 of the Criminal Code (see Supreme Court Decision 97Do158, Oct. 9, 199).

Examining the records in light of the above legal principles, the judgment of the court below that there is no room for applying Article 310 of the Criminal Act to the exclusion of illegality since it is recognized that the defendant has an intention to defame the victim in light of the details of the defendant's information and the details of the information, etc.

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

Justices Yoon Jae-chul (Presiding Justice)