[1] The meaning of "facts" under Article 61 (1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the relationship under Article 61 (2) of the same Act

[2] The meaning of "the purpose of slandering a person" as provided by Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the method of judgment thereof

[3] The case holding that in a case where the defendant posted a letter that criticizes the principal of a religious organization on its Internet homepage, the purpose of slandering under Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is recognized

[1] It is reasonable to view that “facts” under Article 61(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. includes all the fact that is not “false facts” under Article 61(2) of the same Act, that is, whether the facts are true and true, and that is, whether the facts are false or not. In addition, even if it is proved by false facts, when it is proved by false facts, when the actor believed the truth and there is any reasonable ground to believe the false facts, it is the time when the actor does not prove the intention to indicate the false facts, and thus, Paragraph (2) shall not be applied and Paragraph (1) shall not be applied. In other words, when the fact alleged that it is true and true, even if it is objectively false, if the actor believed that it is true and there is a reasonable ground to believe it, all of them shall

[2] "Purpose of slandering a person" under Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is to determine whether a person is the purpose of slandering a person because it requires the intention or purpose of a damage, considering all the circumstances about the expression itself, such as the content and nature of the relevant publicly alleged fact, the scope of the other party to whom the relevant fact was published, and the method of expression, etc., and at the same time, considering the degree of infringement of reputation damaged or may be damaged by the expression. If a publicly alleged fact is false, the principal motive of the publicly alleged fact is recognized as being for the benefit of the public, and if there is a substantial reason for the misconception that the publicly alleged fact is true or true, the purpose of slander is denied if the principal motive is for the benefit of the public.

[3] The case holding that in a case where the defendant posted a letter that criticizes the principal of a religious organization on its Internet homepage, the purpose of slandering under Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is recognized

[1] Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [2] Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [3] Article 61 (1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection

[2] Supreme Court Decision 99Do5734 delivered on May 12, 2000 (Gong2000Ha, 1458) Supreme Court Decision 2003Do6036 delivered on December 26, 2003 (Gong2004Sang, 317)

Defendant

Defendant

Ear-gu

Seoul Central District Court Decision 2005 High Court Decision 4766 Decided December 23, 2005

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal;

The Defendant posted (name omitted of organization) the name of the Defendant by stealing the name of the Defendant and posted it on the Internet, and the Defendant did not posted it, and even if it is recognized that the Defendant posted it, the Defendant posted it for the public interest, not for the purpose of slandering Nonindicted 1 of the victim Nonindicted 1, and thus, the lower court erred by misapprehending the fact, thereby convicting the Defendant of the facts charged.

2. Determination on the grounds for appeal

A. Whether the Defendant posted the instant text on the Internet

이 사건 글들은 (단체명 생략) 다른 회원이 피고인의 인적사항을 도용하여 인터넷에 게재한 것일 뿐 피고인이 인터넷에 게재한 사실이 없다고 변소하므로 살피건대, 원심이 적법하게 조사하여 채택한 증거들에 의하면, ① 이 사건 글들은 (단체명 생략) 홈페이지, 법무부 홈페이지(국민참여마당), 외교통상부 홈페이지(자유게시판)에 게시되어 있는바, 법무부 홈페이지에 이 사건 글을 게재한 자의 인적사항은 이름 “ (이름 생략)”, 주민등록번호 “ (번호 생략)”, 전화번호 “ (번호 생략)”, 이메일 “ (이메일 주소 생략)”으로 되어 있고, 접속주소는 “ (IP 주소 생략)”인 사실, 외교통상부 홈페이지에 이 사건 글을 게재한 자의 인적사항은 이름 “ (이름 생략)”, 주민등록번호 “ (번호 생략)”, 전화번호 “ (번호 생략)”, 핸드폰 “ (번호 생략)”, 이메일 “ (이메일 주소 생략)"로 등록되어 있고, 위 각 인적사항은 (이름 생략)의 그것과 모두 일치하는 사실, 위 법무부 홈페이지 접속주소는 홍콩 침사초이에 있는 PC방 (상호 생략)에 있는 컴퓨터로서, 위 PC방의 주인인 공소외 2는 2003. 초순 겨울 (이름 생략)이 (상호 생략) PC방을 이용하였고, 보통 저녁 8시경부터 새벽녘까지 PC방에 있다가 갔다고 한 사실{피고인은 (교단명 생략) 교주 공소외 1을 체포하기 위하여 2002. 10. 31.부터 2003. 3. 3.까지 약 4개월 정도 홍콩에 체류하였다}, ② (단체명 생략) 홈페이지 ' 공소외 1과 골수 (교단명 생략)지도자들의 성행각＆비리 폭로 및 논의 게시판 33'에는 '홍콩통신 1호 - 쥐새끼 체포작전을 시작하며(2002. 12. 26.)'부터 '홍콩통신 마지막회 - 홍콩에서 철수합니다...(2003. 2. 28.)'까지 작성자 (이름 생략)으로 된 홍콩통신 시리즈가 9회에 걸쳐 게시되어 있고, (단체명 생략) 홈페이지에 게재된 이 사건 글은 위 홍콩통신 시리즈 중 8호 '대한민국 검사님들, 제발 정신차리시요!!!'인 사실, ③ 피고인은 위 홍콩통신 2호와 관련하여, 공소외 1의 명예를 훼손하였다는 공소사실에 대하여 2004. 5. 6. 서울중앙지방법원 2004고약 (사건번호 생략)호로 벌금 700,000원의 약식명령을 받고 위 명령은 2004. 8. 31. 공시송달로 확정된 사실, ④ 2003. 1. 29. 08:27경 위 (단체명 생략) 게시판에 '오늘도 여전히 대한민국의 모든 주요사이트에, 기자들에게 국회의원들에게, 장관 및 고위공무원들에게...메일을 보내느라 날방 홀라당 깠따'(수사기록 2권 49)라는 글이 피고인 명의로 게재된 사실을 인정할 수 있고, 위 각 인정 사실에 의하면, 피고인이 이 사건 글들을 직접 인터넷에 게재하였다는 공소사실이 합리적 의심 없이 증명되었다고 볼 것이므로 피고인의 위 변소는 이유 없다.

(b) Whether the purpose of slander is recognized.

Article 61(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “the Act”) provides that “a person who defames another person by openly pointing out facts with intent to defame another person through an information and communications network shall be punished by imprisonment with or without prison labor for not more than three years or by a fine not exceeding 20 million won.” Article 61(2) of the Act provides that “a person who defames another person by openly pointing out false facts through an information and communications network with intent to defame another person shall be punished by imprisonment with or without prison labor for not more than seven years, suspension of qualifications for not more than ten years, or a fine not exceeding 50 million won.” Article 61(

However, it is reasonable to view that “facts” under Article 61(1) of the above Act is not “false facts” under Article 61(2) of the same Act, i.e., whether they are true or true as well as false facts. In addition, even if it is proved by false facts, if it is proved by false facts, that the actor does not prove his/her intent to indicate false facts when there are reasonable grounds to believe that it is true or false, and thus, Paragraph (2) cannot be applied, and Paragraph (1) shall be applied. In other words, Paragraph (1) of the same Article is applicable, even if the fact is objectively false, if the actor believed that it is true or false, and there are reasonable grounds to believe that it is true or false, even if it is objectively false, if the actor stated that it is true or false, all of them are subject to Paragraph (1). The prosecutor also assumes that the Defendant was not guilty (name of organization omitted), website, the Ministry of Justice website, and the Ministry of Foreign Affairs and Trade, and applied Article 61(1) of the above Act.

In addition, the phrase "purposes of slandering a person" under Article 61 (1) and (2) of the above Act refers to whether there is a purpose of slandering a person because it requires the intention or purpose of a harm, taking into account the contents and nature of the relevant publicly alleged fact, the scope of the other party to whom the relevant fact was published, and the method of expression, etc., and at the same time comparing and considering the degree of infringement of reputation that may be damaged or damaged by the expression, etc. In addition, if the publicly alleged fact is false, the principal motive thereof is recognized as a purpose of slandering for the public interest even if it is for the benefit of the public interest. On the other hand, if the alleged fact is true or it is reasonable for the actor to believe that the principal motive is denied if it is for the benefit of the public interest.

As to the instant case, the Defendant stated that “If the number of women raped for the past 20 years reaches 10,000 persons, and the Defendant has committed an indecent act under the name of health examination, only 10,000 women have been ever passed ( dependent on the correct basis)”, and “in particular, Nonindicted 1/3 of the number of women married in the form of marriage in the middle of 300,000 and only 1/3 of the number of women married in the form of marriage in the middle of dubs, they are in the form of a marriage and a war of the family spatition. The cause is ultimately a sex issue with Nonindicted 1 and their wife.” However, considering that the above facts were true, it is difficult to view that not only the Defendant’s right of investigation record, but also the Defendant’s arbitrary value, without accurate grounds or material, falls under the category of “the right of disclosure on the Internet homepage and the number of family spatition in question,” and there is no reasonable reason to see that the Defendant’s use it without reasonable evidence or material.

Ultimately, the judgment of the court below that found the defendant guilty is justified, since the purpose of the defamation is sufficiently recognized.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Kang-won (Presiding Judge)