The protected legal interest in the crime of insult (=the external reputation) and the meaning of “defluence” / In order to establish the crime of insult, whether the external reputation of the victim is practically infringed or whether there is a risk of infringement specifically and practically (negative)

The crime of insult is established when a person is openly insulting (Article 311 of the Criminal Act). The legal interest of the crime of insult is to protect the external reputation, referring to a social evaluation of a person’s value, and “defluence” refers to the expression of an abstract judgment or sacrific sentiment that may undermine a person’s social evaluation without a statement of fact. Furthermore, the crime of insult is established by openly expressing an abstract judgment or sacrific sentiment that may undermine the victim’s external reputation. As such, the victim’s external reputation is not practically infringed or is not likely to be infringed specifically and practically.

Article 311 of the Criminal Act

Supreme Court Decision 87Do739 Decided May 12, 1987 (Gong1987, 1018) Supreme Court Decision 2003Do3972 Decided November 28, 2003 (Gong2004Sang, 84) Supreme Court Decision 2015Do6622 Decided December 24, 2015

Defendant

Defendant and Prosecutor

Attorney Kim Yong-young

Chuncheon District Court Decision 2016No288 Decided June 9, 2016

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the record, it is justifiable for the lower court to have rejected the Defendant’s assertion on mental and physical disability for reasons stated in its reasoning. In so doing, it did not err by misapprehending the legal doctrine

In addition, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is permitted only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is sentenced. In this case where a more minor sentence is imposed on the defendant, the argument to the effect that the sentence is too unreasonable is not legitimate

2. As to the Prosecutor’s ground of appeal

A. Of the facts charged in the instant case, the Defendant insultingd the victim, such as the victim Nonindicted 2, who was the superintendent of the police station located in the Yeongdeungpo-gu Central District of the Yeongdeungpo-gu Police Station, dispatched to Nonindicted Party 1 after receiving the report of 112 during the Defendant’s assaulting Nonindicted Party 1 from around 09:0 of January 1, 2015 to around 09:30 of the same day, the Defendant interfered with the restaurant business operation and assaulted the said Nonindicted Party 1, who was in charge of the business operation of the said restaurant, and who was dispatched to the said Nonindicted Party 1, was the victim, with a large voice, while the proprietor of the said restaurant and its name were customers.

The lower court reversed the first instance judgment convicting the Defendant of this part of the charges on the ground that it is difficult to judge that such expressions have undermined the external reputation of the police officer as a private person, not a State agency, or that the Defendant had an intention to insult. The person in front of a restaurant at the time was aware of the circumstances such as the police officer called out to the place, the situation leading up to the police officer’s legitimate execution of duties, and the situation leading up to and following the Defendant’s abusive speech against the police officer’s legitimate performance of duties, and thus, they did not pose a risk of negative assessment on the personal value of the victim police officer as a victim due to the Defendant’s humiliation.

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

1) The offense of insult is established when a person is openly insulting (Article 311 of the Criminal Act). The legal interest protected by the law is the external reputation meaning a social evaluation of the value of a person. Here, insult refers to the expression of an abstract judgment or a sacrific sentiment which is likely to undermine the social evaluation of a person without a statement of fact (see, e.g., Supreme Court Decisions 87Do739, May 12, 1987; 2003Do3972, Nov. 28, 2003). The offense of insult is established by openly expressing an abstract judgment or a sacrific sentiment which is likely to undermine the external reputation of the victim, and thus, the victim’s external reputation is not practically infringed or the risk of infringement is not likely to occur.

2) However, according to the reasoning of the lower judgment and the evidence, the lower court revealed the following: (a) the Defendant, while interfering with the business of the restaurant at the time of the original adjudication and assaulting the restaurant proprietor, was 112 reported on the street in front of the said restaurant open to the public by the married couple, guests, and neighboring merchants; and (b) expressed the victim, who was a police officer, called the victim, who was called out after receiving a 112 report, to the effect that the Defendant: (a) “ young fright, bucker, frighter, frighter, and frighter, who was not a bitch bitch.”

3) In full view of the contents of the Defendant’s statement, the surrounding circumstances at the time, and the circumstances leading the police officer to the scene, etc., the Defendant at the time deemed as having committed an act of interference with the duties and assault, and committed an insulting act in a danger of undermining the assessment of the personal value of the police officer, by putting the individual police officer, who seeks to enforce the law, such as preventing the act of interference with the duties and assault, etc., and by inducing him/her from doing so, and it is difficult to evaluate this merely as having expressed an opinion of the police officer about the situation at the time or made an exceptional speech or behavior. Furthermore, even if it was possible for the Defendant to recognize the circumstance that the people who were in the place at the scene at the time had been aware of the fact that the Defendant did not take a brut speech without any ground because they had a public performance and dissemination possibility for many people, such as restaurants or neighboring merchants, it cannot be said that there was an abstract danger that may undermine the individual external reputation of the victim police officer.

4) Nevertheless, the lower court rendered a not-guilty verdict on this part of the facts charged for reasons indicated in its holding. In so doing, it erred by misapprehending the legal principles on the meaning of insult and the legal nature of the offense of insult, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

3. Conclusion

The Defendant’s appeal against the guilty portion of the judgment of the court below is without merit, but the acquittal portion, which is the part of the judgment of the court below, should be reversed. Since the part which the court below found the Defendant guilty and the not-guilty verdict are concurrent crimes under the former part of Article 37 of the Criminal Act, one of the judgment below shall be reversed, and the case shall be remanded to the court below for retrial and determination. It is so decided as per Disposition by

Justices Kwon Soon-il (Presiding Justice)