(영문) 서울고등법원 2020.10.15. 선고 2019누64756 판결

The judgment of the first instance is revoked. The Defendant’s revocation of all sanctions against the Plaintiff on August 21, 2013 and the notification and broadcast order (AP and broadcast review AP) (the Plaintiff stated in the complaint and petition of appeal that “each sanctions order” is revoked as the purport of the claim and appeal. However, according to the purport of all pleadings, including the briefs submitted by the Plaintiff on April 3, 2014, the Plaintiff appears to seek revocation thereof on the premise that each of the notification and broadcast orders constitutes a disposition, and thus, it appears that the Plaintiff seeks revocation thereof.)

Reasons

1. Details of the disposition;

The reasoning for this part of this Court is as stated in the reasoning of the judgment of the court of first instance except for the parts used or added as follows. Thus, this part of this Court shall be cited, including attached Forms 1 and 2, in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Supplementary or added parts]

○ From 3 to 9 parallels in the first instance judgment are as follows.

c. Orders to take disciplinary measures, etc.

On August 21, 2013, the Defendant issued an order for disciplinary action and warning to persons related to the relevant broadcast program pursuant to Article 9(1) and (2) and Article 100(2) of the former Broadcasting Act (amended by Act No. 12677, May 28, 2014; hereinafter the same shall apply) to the Plaintiff on the ground that each of the instant broadcasts violated Article 9(1) and (2) and Article 100(4) of the former Broadcasting Act concerning objectivity and fairness (amended by Act No. 12677, May 28, 2014; hereinafter the same shall apply) and notification of such disciplinary measure (hereinafter referred to as each of the instant order), and each of the instant broadcasting orders and the details of each of the instant sanctions (hereinafter referred to as the “broadcasting Order”).

2. Determination as to the principal safety defense against each of the instant broadcasting orders

A. The defendant's main defense

The Plaintiff is obligated to automatically broadcast the full text of the decision pursuant to Article 100(4) of the former Broadcasting Act (hereinafter “the obligation to notify”) at the same time as receiving a sanction order from the Defendant. As such, each of the instant broadcasting orders is merely a demand and recommendation to the Plaintiff, who already bears the obligation to notify broadcasting, and does not constitute an administrative disposition affecting the legal status of the Plaintiff. Accordingly, the Plaintiff cannot dispute the part of each of the instant high local order among the instant lawsuits as an appeal litigation.

B. Determination

1) Whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly and generally, and an action shall be determined individually and specifically, taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, the actual relation between the act and the disadvantage suffered by interested parties, the principle of administration by the rule of law, the attitude of an administrative agency related to the pertinent act and interested parties, etc. (see, e.g., Supreme Court Decision 2010Du7321, Jun. 10, 201). An action for which no direct legal change exists in the legal status of the other party or other interested parties, such as acts inside the administrative agency, referral, and actual notification, is not subject to an appeal litigation (see, e.g., Supreme Court Decision 2008Du3500, Apr.

2) For the following reasons, each notice broadcasting order of this case is merely an act of non-poweral fact with a recommended effect only, and does not constitute an administrative disposition subject to appeal litigation (see Supreme Court Decision 2014Du43974, Mar. 12, 2015). Therefore, the part concerning each notice broadcasting order of this case among the lawsuits of this case is unlawful, and the Defendant’s main safety defense pointing this out is with merit.

A) Article 100(4) of the former Broadcasting Act provides that a broadcasting business entity shall broadcast without delay the full text of the Defendant’s decision when it received a sanction order pursuant to Article 100(1) of the same Act. As such, the Plaintiff, a broadcasting business entity that received the sanction order from the Defendant, is not a notice broadcasting order of this case ordered by the Defendant, but a broadcasting business entity that received the sanction order, bears the obligation of notifying broadcasting under the above Act and subordinate statutes. Therefore, even if each of the instant orders was issued by the Defendant at the time of each of the instant sanction orders, the Plaintiff’s obligation of notifying broadcasting is not the foregoing order, but the Plaintiff’s obligation of notifying broadcasting is based on Article 100(4) of the former Broadcasting Act. Therefore, each of the instant

B) Article 108(1)27 of the former Broadcasting Act provides that a broadcasting business entity shall be subject to an administrative fine if the broadcasting business entity fails to perform its duty of notification as above. However, it is interpreted as a sanction for failure to perform its duty of notification under Article 100(4) of the former Broadcasting Act, and cannot be deemed as a sanction for failure to perform its duty of notification under Article 100(4) of the same Act, and no direct sanction or legal disadvantage is provided for the performance of its duty of notification in a way different from that determined and notified by the Defendant.

C) Article 100 of the former Broadcasting Act provides in advance the opportunity to state opinions with respect to a disciplinary measure ordered by the Defendant (Article 100) and the procedure of remedy with respect to a request for review (Article 5(6)), while there is no provision with respect to a remedy with respect to a notice broadcasting order. In addition, according to each of the instant written decisions (Evidence A) of this case, although the Defendant ordered the Plaintiff to provide a broadcast, it is referred to in Paragraph (2) of this case that “4. objection method and period during the above written decision” only refers to that the Defendant can request a review against the sanction order only, and the circumstance that there is no mentioning the method of objection with respect to the notice broadcasting order cannot be seen as the content of Article 100(4) of the former Broadcasting Act, rather than the intent to directly impose the Plaintiff’s obligation to notify through the notice broadcasting order, the Defendant’s intent seems to present the specific contents and method of the notice broadcasting necessary for performing the Plaintiff’s obligation to notify the Plaintiff, and to encourage the Defendant’s convenience in its examination.

D) On the premise that a disciplinary measure order ordered by the Defendant is lawful, the question is whether the Plaintiff complies with the obligation to notify the Plaintiff’s broadcast, and whether the Plaintiff complies with the obligation to notify the Plaintiff through the disposition of an administrative fine on the ground of the Plaintiff’s nonperformance of the obligation to notify the broadcast and the procedure of objection thereto. Even if the Defendant is taking any disadvantageous measure against the Plaintiff on the ground that the Defendant did not comply with the order to notify the broadcast, the Plaintiff may contest the Plaintiff’s legal status by filing a suit seeking revocation against the disadvantage of the Plaintiff. Therefore, it is difficult to view that the Defendant’s disposal of each of the orders

E) Furthermore, even though the Defendant merely notified the Plaintiff of the content of Article 100(4) of the former Broadcasting Act through a notice broadcasting order, rather than merely notifies the Plaintiff of the content, it is ordered to implement matters that are not the Plaintiff’s obligation. However, if it is determined that the content and method of the notice broadcasting order that the Defendant determined and notified are unreasonable, it is deemed that the Plaintiff could broadcast the full text of the decision pursuant to Article 100(4) of the former Broadcasting Act without complying with such order, so long as it appears that the said order itself is able to directly change the Plaintiff’s rights and obligations or that there is no legal apprehension. Therefore, even if the above order leads to apprehension that the Plaintiff may suffer disadvantages that may have an impact on the Plaintiff’

3. Whether the grounds for disposition are permitted to change.

A. The defendant's assertion in this court

The facts cited by the Defendant as the basis for each of the instant sanctions orders are as follows: ① the Plaintiff spawnizes the pictures that suggest the inappropriate relationship with young women, ② the Plaintiff 1 broadcasting and Twelves using direct and low-speed expressions such as Twelves Cogor, E Clas Cogor, Al Clas Cogor, S, S, 'S', 'M', 'M', 'M', 'M', 'M', 'M', 'Nlive and low-speed expressions; ② the broadcast and Twelve in this case using direct and low-speed expressions such as Twelves, 'N', 'N', 'N', 'N', and 'N', 'N', 'N', 'N', 'N', 'N', 'N', 'N', 'N', 'N', 'N', 'N' and 2.

As above, the expressions used in each of the instant broadcasts constitute a violation of Article 27(2) of the former Review Regulations as a indecent and direct expression that gives viewers a sense of aversion in violation of the duty to maintain the dignity of broadcasting, and constitutes a violation of Article 27(2) of the former Review Regulations. As long as the Plaintiff used low-speed and stimulative expressions, including a lineal ascendant or descendant, and broadcasted without any stimulative and indecent expressions, it constitutes a violation of Article 51(3) of the former Review Regulations. Moreover, the Plaintiff’s act of repeatedly broadcasting each of the instant broadcasts using a stimulative and indecent expression along with the extreme screen during the juvenile viewing hours constitutes a violation of Article 44(2)

The Defendant modified the grounds for the disposition and the relevant statutes to the extent that the social factual relations, which form the basis of the initial grounds for the disposition of each of the instant sanctions orders, to the same extent, and according to the changed grounds for the disposition, each of the instant sanctions orders is lawful.

B. Determination

1) In an appeal seeking the revocation of an administrative disposition, in light of the substantive rule of law and the protection of trust in the people, who are the other party to the administrative disposition, an administrative agency may add or modify other grounds for disposition only to the extent that the underlying facts are identical to those of the original disposition, and in principle, it is not allowed to assert other grounds for disposition on the ground of separate facts that the basic facts are not recognized as identical (see, e.g., Supreme Court Decision 2002Du5016, May 28, 2002).

Meanwhile, inasmuch as a disposition authority’s addition or modification of the statutes on the basis of a disposition only to the extent that it does not change the specific facts stated at the time of the disposition cannot be deemed as an addition of the new grounds for disposition, in such a case, it is unreasonable to judge the legality of the disposition by applying the statutes added or modified after the disposition regarding the specific facts identified by the disposition. However, if the amendment of the statutes on the basis of disposition is not different from that of a separate disposition that cannot be recognized as identical to the previous disposition, it may not be permitted (see, e.g., Supreme Court Decision 2010Du28106, May 26,

2) In light of the following circumstances acknowledged by the aforementioned facts admitted and the evidence revealed earlier, it cannot be deemed that the grounds presented by the Defendant on the grounds of each disposition of the instant case and the basic facts of the grounds for disposition to be modified in this court are identical. Therefore, the change of the grounds for disposition alleged by the Defendant cannot be permitted, and it is reasonable to consider whether each of the instant sanctions orders is lawful based on the initial grounds

A) In light of the facts and applicable provisions of the instant sanctions order as seen in Section 1-C of the above 1-C, each of the instant sanctions is against Article 9(1) and Article 14 of the former Review Regulations by citing only the negative data about E, T, and T, or by broadcasting as a fact that is unclear, without accurately and objectively handling all facts, and by causing viewers to confuse with viewers. ② Even though the positive evaluation is a majority, it is in violation of Article 9(2) of the former Review Regulations by failing to maintain social issues or interests and reflect diverse opinions in a balanced manner without maintaining fairness and balance, and thereby violating Article 9(2) of the former Review Regulations. ③ In order to attract private power desire for E, it is a material, such as making an independent campaign to create image as an independent speculation, or describing “an honorary journalist, i.e., e., a person who committed a violation of Article 20 of the former Review Regulations,” or “an honoraryist, i.e., a person who committed a violation of the former Review Regulations.”

Meanwhile, in light of the contents of the relevant applicable provisions, the changed reason for disposition violates Article 27(2) of the former Review Regulations by giving the viewers a sense of aversion by using a direct and indecent expression as seen above, and ② as above, Article 51(3) of the former Review Regulations by using a lineal ascendant or descendant, etc. that harms the correct language life through a direct and indecent expression, and ③ Article 44(2) of the former Review Regulations was violated by broadcasting a broadcast using a direct and indecent expression during the hours of protection of children and juveniles without considering the development process in which they are able to view as the viewers’ emotionally.

B) Both paragraphs (3) and (3) of the previous dispositions are related to the express and indecent expressions. However, the previous dispositions require that “the reputation of the deceased was damaged,” while the changed grounds for dispositions are as follows: (3) in the previous dispositions, it is required that “in the case of paragraph (1), the viewer has given a sense of aversion to the seeer”; (2) in the case of paragraph (3), it is required that “the broadcast is broadcast during the viewing and protection period for children and juveniles, and did not take into account the process of emotional development of the audience.” As such, the previous grounds for dispositions and the changed grounds for dispositions are different from each other, the subject and method of exercising the right of defense are different, and how to exercise the right of defense is different from those of the Plaintiff, who is the other party to the disposition, the judgment on whether the previous grounds for dispositions are subject to sanctions under Article 100(1) of the former Broadcasting Act. Therefore, if the change of the grounds for dispositions is permitted, it is likely to substantially disadvantage the Plaintiff’s exercise of the right of defense.

C) Article 18(1) of the Act on the Establishment and Operation of Korea Communications Commission (hereinafter “Korea Communications Commission”) provides that “The Korea Communications Commission shall establish independently performing its duties to ensure the public nature and fairness of broadcast content, to promote a sound culture in information and communications, and to create an environment for the proper use of information and communications.” Article 21(2) of the Broadcasting Act provides that “matters concerning deliberation and resolution on sanctions, etc. under Article 100 of the Broadcasting Act” as the duties of the Korea Communications Commission. Meanwhile, Article 25 of the same Act provides that “The Korea Communications Commission may determine sanctions pursuant to Article 100(1) of the Broadcasting Act for broadcasting in violation of the Review Regulations (Article 10(1)), and the Korea Communications Commission shall request the Defendant to take sanctions without delay (Article 18(3)), and the Defendant is obliged to order the disposition of sanctions when requested to take such sanctions (Article 5(5)).” As can be seen, the Broadcasting Act provides that the Korea Communications Commission’s duties of deliberation and resolution on broadcasting in violation of the Review Regulations are the request for sanctions.

However, modification of the grounds for the disposition of each of the instant sanctions order to the court shall not be permitted unless there are special circumstances to deprive the Plaintiff of the opportunity to undergo deliberation by the Korea Communications Standards Commission on the grounds for the disposition that were modified by the Plaintiff, and there is no evidence to support that the Korea Communications Standards Commission had given the Plaintiff an opportunity to notify and state his/her opinion on the grounds for the disposition that were modified in the course of deliberation by the Korea Communications Standards Commission

4. Whether each of the sanctions orders of this case is lawful

A. The plaintiff's assertion

(i) procedural defects;

A) Article 25(2) does not provide for the qualification of an agent under Article 25(2), and Article 61(9) of the former Review Regulations provides that the Administrative Procedures Act shall apply mutatis mutandis, but this does not purport to apply the provisions regarding the qualification of an agent to state opinions to the effect that the procedure related to the statement of opinion shall apply mutatis mutandis. Therefore, the Defendant’s failure to provide an opportunity for stating opinions on the ground that each of the instant broadcasts is not included in B employee who produced each of the instant broadcasts as prescribed in

B) Even if Article 2 of the Administrative Procedures Act is applied mutatis mutandis to each of the instant sanctions orders, the deprivation of the opportunity for the producers of each of the instant broadcasts to state their opinions is the same as preventing the Plaintiff’s statement of opinion. Therefore, it is unlawful.

2) Regarding deliberation on fairness and objectivity under the Broadcasting Act

Article 6(1) of the former Broadcasting Act provides that a broadcast report shall be fair and objective, and Article 33(2) provides that "fair and public nature of a broadcast report," and that "fair and public nature of a broadcast advertisement," and the Broadcasting Act does not provide for fairness and objectivity, so it should be interpreted that the broadcast act limits the subject of deliberation on fairness and objectivity to "broadcasts" and "broadcasts". However, Articles 9 and 14 of the former Review Regulations do not constitute a basis for each of the instant sanctions measures, since each of the instant broadcasts does not constitute "news reports and comments," as it does not constitute "broadcasts," nor does it be subject to deliberation on fairness and objectivity under the Broadcasting Act.

3) Non-existence of grounds for disposition

A) Considering the fact that each of the instant broadcasts was produced for the purpose of raising a question to historical norms by clarifying a relatively less known fact, and that fairness or objectivity cannot be seen as being secured by maintaining mechanical neutrality or tactical average value, there is a need to freely exchange diverse opinions on history, and that each of the instant broadcasts is composed of facts based on the historical data verified, it cannot be said that each of the instant broadcasts distorted the truth, or that it was an ambiguous fact without dealing with facts accurately and objectively, thereby causing confusion to viewers, and thus, it does not violate Articles 9(1) and 14 of the former Review Regulations.

B) Article 9(2) of the former Review Regulations does not apply inasmuch as the content of the historical person does not constitute a matter in which social issues or interests conflict.

C) The fact that E did not use indecent expressions, even if some indecent expressions exist, falls under “the time solely for the public interest”, and thus, it cannot be deemed that the honor of a deceased person was damaged by Article 20(3) of the former Review Regulations.

(iv) the deviation and abuse of discretionary power;

Considering the fact that the review rules on general broadcasting cannot be applied to the lux channel, and that the purpose of sanctions can be achieved by a more minor disposition than each of the instant sanctions orders, each of the instant sanctions orders is unlawful by abusing or abusing discretion.

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

1) The binding force of the judgment reversed and remanded

The court to which the case was remanded from the court of final appeal is bound so long as the court of final appeal submitted new arguments or evidences in the course of a trial after remanding the case to the court of final appeal, and there is no change in facts which form the basis of continuous judgment (see, e.g., Supreme Court Decisions 95Da49233, Feb. 28, 1997; 97Da14934, Jul. 11, 1997). Thus, this court shall make a decision in accordance with the above criteria.

2) As to the procedural defect argument

The reasoning for this part of this Court is as follows, except for the following parts, the entry from 14th to 11th day of the judgment of the first instance is the same as the entry from 7th day of the 14th day to 14th day of the 15th day. Thus, this part shall be cited in accordance with Article 8(2) of the Administrative Litigation Act,

[Supplementary or added parts]

○ From 14th bottom of the judgment of the court of first instance, the Broadcasting Act provides three types of broadcasting laws as the former Broadcasting Act.

○ From the 14th bottom of the judgment of the first instance, the "Review Regulations" of 14 up to the 14th bottom shall be respectively referred to as the "Gu Review Regulations."

○ The 15th two parallels, six parallels, and eight parallels in the first instance judgment each of the instant dispositions are “each of the instant dispositions” and “each of the instant sanctions order.”

3) As to the assertion on deliberation on fairness and objectivity under the former Broadcasting Act

For the following reasons, the former Broadcasting Act delegated the Korea Communications Standards Commission to deliberate on fairness and objectivity with respect to the overall broadcasting sector. Accordingly, the deliberation rules demand fairness and objectivity with respect to the overall broadcasting sector, and adopt it as the criteria for deliberation. Therefore, the program subject to deliberation cannot be deemed to be limited to the news report program.

A) The former Broadcasting Act imposes a public responsibility on all broadcasts regardless of the field of broadcasting (Articles 1, 5, and 10(1)1), and since the impartiality and public nature of broadcast content are derived from the public responsibility of broadcasting, it cannot be deemed that the broadcast is required only to a news report program. Since a news report program takes an important social role in the process of forming public opinion through coverage, news reporting, commentaries, commentaries, etc. as to overall domestic and foreign politics, economy, society, culture, etc., the degree of such demand is more than that of other broadcast programs. Article 6(1) of the former Broadcasting Act, which provides that “The news report by broadcast must be fair and objective,” which emphasizes that fairness and objectivity in a news report should be strong compared to that of other broadcast programs, such as culture, entertainment, etc.

B) The former Broadcasting Act does not limit the scope of deliberation to the news program, and instead grants the authority to deliberate and decide on the broadcast content to the Broadcasting Communications Commission (Article 32), and stipulates that the deliberation rules for deliberation on fairness and public nature shall be enacted and publicly announced (Article 33(1)). In addition, Article 33(2) of the former Broadcasting Act provides that “other matters concerning the deliberation duties of the Korea Communications Commission under the provisions of this Act” under Article 15, as the matters to be included in the deliberation rules are referred to in subparagraphs 1 through 14, and Article 33(2) of the former Broadcasting Act provides that “other matters concerning the deliberation duties of the Korea Communications Commission pursuant to the provisions of this Act”, it is reasonable to interpret “matters concerning the fairness and public nature of news reports and commentaries” under Article 9 as examples of matters to

Accordingly, the former Review Regulations, without limiting to news reporting programs in Articles 9 and 14, require fairness and objectivity of broadcasting, and provide the overall review of broadcasting sector.

C) The recent classification of broadcasting sectors, such as news reports, culture, and entertainment, is becoming unclear and the convergence of different fields of broadcasting, such as human news management and news show, is active. In such a situation, if the news reporting program is limited to news reporting programs, the possibility that the broadcast review system cannot function properly cannot be ruled out. Meanwhile, since the launch of the Korea Communications Standards Commission in 2008, the Korea Communications Standards Commission has continuously deliberated on fairness and public nature of all broadcast programs.

4) Whether Article 9(1) and (2) and Article 14 (Obligation to Maintain objectivity, Impartiality and Balance) of the former Review Regulations are violated

A) Article 32 of the former Broadcasting Act explicitly states that “The Korea Communications Commission shall consider the characteristics of each medium and channel when deliberating on the fairness and public nature of broadcast content.” Article 5(1) of the former Review Regulations provides that “The Commission shall respect the creativity, autonomy, and independence of broadcast media and each broadcast channel” under Article 5(1) of the former Review Regulations, and Article 5(2) of the same Act provides that “When deliberating on any broadcast program in accordance with this provision, the Commission shall consider the difference between the expertise and diversity of broadcast media and each broadcast channel.” In addition, even in the same medium or channel, information or opinions may be presented in various forms, and the degree of influence that broadcasting has on society is different by medium and channel, as well as

Examining objectivity, fairness, and balance by applying a uniform standard without taking into account the specific difference in the influence of broadcasting on society, there is a risk that the Broadcasting Act differs from the medium, channel, and broadcast sector to distinguish the content of each regulation, and to ensure the quality of people’s lives at the same time by seeking diverse purposes through each broadcast program, and to excessively restrict the role of broadcasting that seeks to form a fair public opinion forum. Therefore, when deliberating on whether the content of broadcasting maintains fairness and public nature, the characteristics of each medium, channel, and program should be considered.

Specifically, this is as follows.

(1) In examining the objectivity, fairness and balance of broadcasts, the Korea Communications Standards Commission shall pay attention not to infringe on the autonomy, expertise and diversity of broadcast media or channels, taking into account the degree or scope of influence by the broadcast media or channels that broadcast the relevant broadcast program on the people’s living, emotional sentiments, and formation of public opinion. Furthermore, if the broadcast media or channels that broadcast the relevant broadcast program do not have much degree or scope of influence on the people’s living, emotional sentiments, and formation of public opinion, and if the broadcast media or channels that mainly contribute to facilitating the exchange of diverse information and opinions, it is reasonable to relax the review criteria on the objectivity, fairness, and balance of broadcasts. Here, relaxing the review criteria is to relieve the review criteria by the Korea Communications Commission to determine whether the broadcast content complies with the objectivity, fairness and balance under the Review Regulations, and ultimately, it means that the Korea Communications Standards Commission has to strictly recognize the violation of its duty to maintain objectivity, fairness and balance under the Review Regulations. Through this, this is ultimately aimed at enhancing the freedom of broadcasting and press by respecting the autonomy, expertise, and diversity of the relevant broadcast.

(2) Broadcasting programs produced by viewers are introduced for the public role of broadcasting that forms a variety of social opinions, reflecting the understanding and viewpoint of the minority, and there is a limit in technology, capital, and the quantity of accessible information in terms of the viewers’ production, and its expertise or popularity is bound to be insufficient. Such limit is characterized by the fact that viewers with different opinions can resolve by producing and broadcasting broadcast programs from their respective perspective. Therefore, broadcast programs produced by viewers are different from broadcast programs directly produced by broadcasting business operators in terms of the degree of expectation and reliability of the broadcast content or social influence. Therefore, the review criteria need to be mitigated compared to those produced by broadcasting business operators in examining the objectivity, fairness and balance of broadcast programs produced by viewers.

(3) Since news reporting programs have a direct impact on the formation of individual opinions and social public opinion, fairness and objectivity are required as prescribed by Article 6(1) of the former Broadcasting Act. On the contrary, it is difficult to view that news reporting programs have the same impact as news reporting programs (hereinafter referred to as "entertainment programs") for the purpose of enhancing and educating the people, such as documentary media, knowledge, living, cultural lectures, etc. (hereinafter referred to as "cultural programs") and for the purpose of cultivating national sentiments, such as Drama, film, sports, and diversification of leisure life, and for the purpose of diversifyinging leisure life. Accordingly, when the Broadcasting and Communications Commission examines whether a culture program or entertainment program violates its duty to maintain objectivity, fairness and balance, it is reasonable to apply differentiated review criteria with news reporting programs in consideration of its characteristics.

B) In full view of the aforementioned evidence, Eul evidence Nos. 9 and 10 and the purport of the entire pleadings, the following facts can be acknowledged.

(1) The Plaintiff constitutes a program provider that entered into a contract for exclusive use of channels with a CATV broadcasting business operator and a satellite broadcasting business operator, and each of the instant broadcasts is a non-terrestrial broadcast and a television broadcast corresponding to pay-pay and a set of viewers who paid a given price.

(2) The Plaintiff operated a channel specializing in Bables, and each of the instant broadcasts produced by viewers was broadcasted through a channel with low popular designation or accessibility.

(3) Each of the instant broadcasts is a historical documentaryer and constitutes a cultural program among broadcasting fields (Article 2 subparag. 16 of the former Broadcasting Act, Article 50(2) of the Enforcement Decree of the Broadcasting Act), and generally, aims to convey historical facts or a specific perception and evaluation of human resources. Each of the instant broadcasts is a new statement about the fact that a relatively less known fact about E and T is known.

C) Comprehensively taking account of the following circumstances revealed in light of the legal principles as seen earlier, each of the instant broadcasts did not violate the duty of maintaining objectivity, fairness and balance as it distort the truth or did not reflect the parties’ opinions in a balanced manner. Therefore, there is no ground for disposition that each of the instant broadcasts violated Articles 9(1), 9(2), and 14 of the former Review Regulations.

(1) Each of the instant broadcasts was aired through a non-terrestrial broadcast medium and a news program with limited free access of viewers, and a historical documentaryer program produced by viewers. As such, in examining the objectivity, fairness and balance of broadcast content, a relatively relaxed standard of review should be applied, unlike the terrestrial broadcast or news program directly produced by a broadcasting business entity, which is accessible free of charge.

(2) Each of the instant broadcasts is about public figures and public interest issues, and there are conflicting historical and social evaluations on E and T, and the debate on their friendships or achievements still constitute an important part of the difference in political opinions, and thus has a significant impact on our life.

In determining and evaluating historical records, there is an inevitable aspect to some extent that intervention in subjective perspective is inevitable. However, the factual basis of the broadcast content ought to be based on reliable data, and the authenticity of the content of the broadcast should be sufficiently examined in advance, barring any other special circumstances. Each of the instant broadcasts is not only based on a producer’s considerable effort to verify the facts from the broadcast to the broadcast, but also on the basis of the historical record. The overall impression that each of the instant broadcasts, including the content and composition of each of the instant broadcasts, the status of a person subject to an interview, and the career, etc., provided to the viewers, may be deemed to have been raised to the extent of raising doubts on the historical facts existing and its premise.

On the other hand, the fact-finding and its evaluation of historical history are bound to be diverse in accordance with their respective historical views. However, if a historical documentary evidence is used to broadcast only a historical documentary evidence that reflects the opinions of both the parties concerned with a different point of view from a producer’s perspective, it may not only be treated in a broadcast that raises questions or suspicions about the concept of alcoholic beverages, but also be limited to a simple comparison of a historical point of view. As seen earlier, each of the instant broadcasts is intended to create diverse forms of public opinion by raising an question about the historical facts and interpretation of the historical position where a person has already been sufficiently known to many people, and thus, it is premised on the possibility of other interpretation.

(3) Furthermore, in the case of historical documentary media, the balance of broadcasting should not be understood as having to be provided formally as to diverse opinions or perspectives within one program, such as election broadcast or news report broadcast. It is sufficient that each of the instant broadcasts guarantees the opportunity for viewers with other opinions to have access in view of the fact that each of the instant broadcasts is a viewer production program. The parties related to each of the instant broadcasts also have the opportunity to present various conflicting opinions through the participation in the viewer production program, etc. as provided in Article 69(7) or Article 70(7) of the former Broadcasting Act.

5) Whether Article 20(2) of the former Review Regulations (Article 20(2) of the former Review Regulations) is violated

A) Even if a public official’s reputation subject to historical evaluation among the broadcast content is indicated, barring any special circumstance, it cannot be deemed a violation of Article 20(2) of the former Review Regulations, barring any special circumstance. Moreover, if the publicly alleged fact is related to the public interest and is true or has considerable reason to believe that it is true, it shall not be subject to sanctions under Article 100(1) of the former Broadcasting Act pursuant to Article 20(3) of the former Review Regulations.

In this context, “when the objective is solely for the public interest” means when the alleged fact concerns the public interest when objectively viewed, and an actor also expresses the fact for the public interest. If the principal objective or motive of an actor is for the public interest, if the principal objective or motive of an actor is incidental to the other private interest purpose or motive, it is unreasonable to say that the term “actual fact” is a fact that conforms to objective facts, and even if there is a little difference from truth or somewhat exaggerated expression (see, e.g., Supreme Court Decision 2013Da34013, May 24, 2016).

In addition, defamation and insult should be dealt with separately. Defamation or indecent expressions without a statement of fact may constitute a violation of Article 27(2) of the former Review Regulations providing that “A broadcast shall not give viewers a sense of aversion by means of indecent expressions, etc.” (see, e.g., Article 27(2) of the former Review Regulations, and may not be included in violation of Article 20 of the former Review Regulations stipulating the prohibition of defamation.

B) For the following reasons, each of the instant broadcasts cannot be deemed to have violated Article 20(2) of the former Review Regulations providing for respect for the honor of a deceased person, or cannot be subject to sanctions pursuant to Article 20(3) of the former Review Regulations. Therefore, there is no ground for disposition that each of the instant broadcasts violated Article 20(2) of the former Review Regulations.

(1) 피고가 구 심의규정 제20조 제2항 위반에 해당하는 처분사유로 삼은 내용은, 이 사건 1 방송에서 E이 사적인 권력욕을 채우기 위해 독립운동을 했다거나 독립 투사로서의 이미지를 만들기 위해 거짓말을 하고 여대생 및 백인 여자들과 데이트를 즐기며 독립자금을 횡령한 것 등으로 묘사하고, 이 사건 2 방송에서 T이 동료들을 밀고해 살아남았다거나 무고한 언론인을 재판을 통해 살해하였고 일본으로부터 검은돈을 받거나 주가조작을 통해 부정한 자금을 모았으며 경제성장의 공로를 가로챈 것 등으로 묘사함과 동시에 저속한 표현을 사용하여 사자의 명예를 훼손하였다는 것이다.

(2) First of all, the portion of the instant broadcast 1 using such expressions as ‘N', ‘N', ‘N', ‘N', ‘N', ‘N', ‘N', and the portion of the instant broadcast 2 as ‘X', while expressing T', in the instant broadcast 2, may constitute indecent or insulting expressions, but cannot be deemed as defamation requiring a statement of fact.

(3) The instant broadcast 1 cited CIA document (as of October 28, 1948), F newspapers, G articles, and I articles, etc., and the instant broadcast 2 cited U, K K reports, materials of US National Security Council No. 483, and CIAAS Social Epis, etc. on the basis of these materials. The instant broadcast 2 is based on these materials, and there is a little difference or exaggeration with the truth in the detailed contents and purport of the broadcast. However, considering the overall content and purport of the broadcast, it cannot be viewed as defamation because it is consistent with objective facts.

(4) In relation to the assessment of the instant broadcast 1 as the independent movement for E, the instant broadcast is seeking to raise suspicions based on historical data in relation to the assessment of whether the Republic of Korea’s economic growth of T is deprived of, and deals with the issue of public interest related to public figures. Each of the instant broadcasts is aimed at debate and re-evaluation of historical facts and human resources. As such, the instant broadcast solely aims at public interest. In that it is based on the official document of a foreign government, newspaper articles, related persons, and interviews with experts, it seems that there is a considerable reason to believe that there is a fact different from the truth, even if there is a fact different from the truth.

D. Sub-committee

Therefore, each of the instant broadcasts cannot be deemed to have violated the duty to maintain objectivity, fairness, and balance and the duty to respect a deceased person’s reputation as prescribed in Articles 9(1) and (2), 14, and 20(2) of the former Review Regulations. Therefore, each of the instant sanctions orders on different premise is unlawful without any need to further examine the Plaintiff’s assertion of deviation or abuse of discretionary power.

5. Conclusion

Therefore, among the lawsuit of this case, the part concerning each of the notice broadcasting orders of this case is unlawful, and thus, the plaintiff's claim seeking revocation of each of the sanctions of this case should be accepted as it is reasonable. As such, the judgment of the court of first instance that differs from this conclusion is unfair, the part concerning each of the dispositions of this case concerning the notice broadcasting order of this case is dismissed, and all of the sanctions orders of this case are revoked