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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although the Defendant made a statement as stated in the facts charged (hereinafter “the instant statement”), the instant statement is merely an expression of opinion as to the qualifications of the said representative of C Apartment (hereinafter “instant apartment”) rather than an expression of fact in view of the whole.
B. The Defendant did not have a public performance since he made it clear to the victim G, and the Defendant’s speech to D is merely a reply to D’s first, and thus did not have the intention of defamation.
C. The Defendant’s instant remarks indicate true facts for the interest of the residents of the instant apartment, and the Defendant’s act is dismissed from illegality.
2. Determination
A. Determination as to the assertion that the instant speech is merely an expression of opinion may be made by means of publicly expressing the fact, and may be made by means of expressing the opinion. Whether the expression expresses a fact or simply expresses an opinion or comment, or if an expression of opinion or comment is expressed, whether or not the expression explicitly expresses a fact that constitutes the premise at the same time or not, shall be determined based on the objective contents of the relevant expression, as well as the ordinary meaning of the words used, the overall flow, and the method of linking the words, etc., on the premise that the general public is in contact with the expression at the same time. Moreover, the distinction between whether the expression expresses a fact or simply expresses an opinion or comment, or not, should be determined based on the ordinary meaning of the words used, the overall flow, and the social flow, etc., which is a background, should also be considered as well.
(See Supreme Court Decision 2005Da58823, Jan. 24, 2008). In light of these legal principles, the Defendant’s statement in the instant case is not merely an expression of the Defendant’s opinion on the qualification for the same representative of the apartment complex, but also an element of the qualification for the representative.