[1] Meaning of and standard for determining “public performance” as an element of the crime of defamation / Whether the so-called “the possibility of dissemination” doctrine, which is established in precedents concerning the public performance of defamation (affirmative)

[2] The case holding that in case where the Defendant was indicted on charges of damaging Party A’s reputation by openly pointing out facts by speaking the Defendant’s husband’s husband’s husband’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son

[1] [Majority Opinion] The relevant provisions of the crime of defamation require that an infringement on reputation be made openly or openly. “Public” or “public” refer to “patently or openly disclosed without concealment or distance,” in advance.” The intent of demanding a public performance is to punish only defamation that is spread in society and harmful to society, thereby preventing excessive restriction on an individual’s freedom of expression. It is clearly stated that the elements of the crime of defamation include “a state in which many and unspecified persons may recognize public performance,” which are general opinions of academic circles.

The Supreme Court consistently held that the performance of defamation is recognized when there is a possibility that the other party can spread the facts publicly known to an unspecified or many unspecified persons, even if the facts were publicly known to the minority on an individual basis regarding the performance of defamation. This doctrine has been equally applied to the determination of the performance of defamation using the information and communications network under the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) and the determination of the performance of a candidate's campaign under the Public Official Election Act, and has been applied as the basic legal doctrine of the Supreme Court precedents concerning the performance of defamation regardless of whether the publicly alleged facts are false or not, or

As the Supreme Court has developed over a long time, it is still reasonable and reasonable in light of the current legal and practical aspects. The Supreme Court precedents and trial practices have established the specific and objective application standards of the spectrum potential, and have strictly recognized the public performance by applying the spectrum potential doctrine on the premise that recognition of the spectrum potential is necessary by classifying the cases, such as strict application standards of the Defendant’s criminal intent or denying the spectrum potential according to the relationship between the other party of the statement and the victim. Specifically, the following are examined: (a) the Supreme Court precedents and trial practices have established the specific and objective application standards; and (b) the application of the spectrum potential doctrine on the premise that recognition of the spectrum potential is necessary by classifying the criteria by case.

(A) A public performance is a constituent element of defamation, and a factual event against a specific minority may constitute a critical reason to deny a public performance. As such, the prosecutor’s strict proof is necessary for the possibility of dissemination. Furthermore, the Supreme Court held that “an act such as delivering personal or private information to a specific individual or minority cannot be deemed to have been performed; Provided, That even if a specific individual or minority is an individual or minority, if there is a possibility of spreading or spreading it to an unspecified or a large number of unspecified persons, it may be deemed to have been performed, the public performance may be deemed to have been performed” to the extent of proving the possibility of dissemination, rather than “the possibility

(B) The existence of a performance shall be deliberated on all the objective circumstances at the time of the act, including the relationship and status between the speaker and the other party or the victim, the details and situation of the conversation, the factual content at the time of the act, and the method and place of a statement, and shall be comprehensively examined and determined. The determination of whether the other party is likely to spread to an unspecified or many unspecified persons. Although the existence of a performance may be considered to determine whether the other party has a potential to spread to the general public after the statement, the unexpected circumstances of the actual dissemination after the statement may be considered only for passive reasons in determining whether the performance is recognized. Therefore, even in accordance with the legal principles on the possibility of dissemination, the possibility of dissemination may be determined in accordance with the aforementioned objective criteria, and the perpetrator may sufficiently anticipate the public performance at the time of the statement, and shall not be held liable

(C) The purpose of defamation as an abstract dangerous crime is to protect an individual’s social evaluation regardless of the truth, and the alleged fact should be made to the extent that it may infringe on the individual’s social evaluation. However, it is sufficient that the risk of infringement has occurred and does not require the result of infringement. Thus, even if a statement of fact was made to the majority and a statement made to the minority is made, it may be interpreted that the statement was made publicly, even in cases where a statement of fact was made to the majority, and that a statement was made to the minority

(D) The legal doctrine on the possibility of radio waves can be deemed to be consistent with the concept of performing a variety of defamation penal regulations, such as an information and communications network. The development of mobile technology, such as the Internet and smartphones, and the communication of most opinions or intentions through the information and communications network such as SNS, e-mail, portal sites, etc. Accordingly, defamation using the information and communications network is also rapidly increasing. The process of information and communications network and information distribution consists of the inherent nature of non-faced characteristics, accessibility, anonymousity, and connection. As such, defamation using the information and communications network is easy to store, reproduce, and deliver information, and the scope of “the other party to the act” is unclear, and defamation using the information and communications network is likely to occur in cases where an act forms a situation in which many unspecified or many unspecified persons can be recognized. In particular, defamation via the information and communications network is easily lost, and the degree and scope of infringement of the victim’s defamation is widened due to rapid spread, thereby making it impossible for the victim to do so.

Therefore, it is difficult to function as a solution if the other party is aware of defamation by means of information and communications networks, or the legal doctrine that the other party does not meet a certain minority performance. Rather, even in the case of delivery to a specific minority, examining whether there was a general risk of infringing on an individual’s social evaluation by considering the possibility of dissemination to an unspecified or a large number of individuals is consistent with the judgment of substantial performance and it can serve as a specific standard to limit the scope of performance. The meaning of performance should be equally applied in the Criminal Act and the Special Act on Information and Communications Network Act, etc.

(E) Considering legislative cases such as Article 193 of the German Criminal Code, recommendations by the UN Human Rights Commission, and freedom of expression, in the case of a statement of true facts, “public interest” under Article 310 of the Criminal Code should also be recognized more broadly. In particular, considering that the concept of public interest-relatedness is changed depending on the age and the public interest is changed without a certain number of times depending on the situation, only public figures, institutions, and policies should not be limited to public interest-relatedness.

Therefore, even if the content of factual City is related only to a part of the general interests of society, if it is related only to a community life with other general public, it shall be deemed public interest. Furthermore, even if it is related to an individual, if it is related to the public interest and has gained social interest, it shall not be excluded from the application of Article 310 of the Criminal Act solely on the ground that it is not directly related to the interests of the State and society or a specific social group. Even if it is a private person, the application of Article 310 of the Criminal Act should be determined

[Dissenting Opinion by Justice Kim Jae-hyung, Justice Ansan-chul, and Justice Kim Seon-soo] The Majority Opinion maintains the legal doctrine on the possibility of spreading “public performance” which is the constituent element of the crime of defamation. However, performance as referred to in the crime of defamation refers to the concept that does not include the possibility of dissemination. Performance refers to the state in which many and unspecified persons can be directly recognized, and performance is likely to spread from a certain individual or minority to an unspecified or unspecified person, and the performance requirement cannot be deemed satisfied even if it is possible to spread from a certain individual or minority. The Majority Opinion applies by expanding the elements of crime by expanding the elements of crime, thereby imposing criminal punishment beyond the scope scheduled by the Criminal Act, and cannot be approved in violation of the principle of no punishment without the law and the principle of interpretation of the Criminal Act. The Supreme Court precedents that recognized performance on the grounds of the possibility of dissemination should be modified.

(A) The recognition of a public performance on the ground that there is a possibility of radio wave constitutes an analogical interpretation prohibited by the principle of no punishment without the law, beyond the ordinary meaning of the language and text.

The legislative intent of determining the public performance as a constituent element of the crime of defamation lies in punishing only to reveal the facts “social” or “publicly” beyond the framework of private dialogue or information delivery, among acts that may undermine the evaluation of the value of human being. The legislative intent of the crime of defamation is to punish only where a fact that may infringe another person’s reputation is disseminated in society. This is to narrow the scope of the establishment of the crime of defamation, thereby ensuring the freedom of expression under the Constitution as much as possible.

The possibility of radio waves means that such a result has not yet occurred but may be disseminated in the future. The rationale for punishing “the possibility” that will be disseminated in the future is obviously contrary to the principle of no punishment without the law. It does not vary on the ground that the possibility of public performance is changed to a probable degree. According to the Majority Opinion that recognizes the possibility of public performance as a crime of danger - it is subject to punishment on the ground that there is “the possibility” that the act may be disseminated and performed even in the event that the act is not publicly performed. Such interpretation is clearly unfavorable to the defendant and constitutes an unreasonable extended interpretation and analogical interpretation that should not be permitted.

(B) The Criminal Act clearly prescribes that “an act that publicly expresses facts or false facts” shall be punished. Whether the crime of defamation is established ought to be determined depending on whether the factual act itself has a public performance, rather than whether the alleged fact has a possibility of spreading. In this context, whether performance is performed by analyzing the nature or appearance of an act in question, whether the act was recognized or could have been recognized by an unspecified or unspecified person through a public place, etc., and whether such a situation may be deemed to have been socially or openly disseminated.

The law on the possibility of radio waves is against the principle of no punishment without law because it creates a new constituent element of the possibility of radio waves in addition to the public performance, which is the constituent element of the crime of defamation.In addition, the law on the possibility of radio waves harms the principle of clarity, thereby undermining the function as a norm of the crime of defamation, and allowing the application of the law to arbitrarily operate

(C) The meaning of performance should be equally interpreted in a variety of crimes whose performance is elements in the Criminal Act, etc. In line with the legislative intent of each provision and the systematic interpretation of the Criminal Act. Unlike the crime of public performance and obscenity (Article 245 of the Criminal Act) or the crime of exhibition and screening (Article 243 of the Criminal Act), unlike the crime of public performance and obscenity (Article 245 of the Criminal Act), criticism that the crime of defamation, which includes the possibility of spreading the concept of performance, is inconsistent with the uniform interpretation of the Criminal Act.

(D) Determination of public performance as to whether the other party to a factual event is likely to spread, is in violation of the method of evaluation of criminal law, and imposes a responsibility for the result on an offender by infringing on the predictability of the offender. Ultimately, defamation facts in the crime of defamation are held liable for the outcome by taking account of an unexpected circumstance, which should not be considered as an object of the illegal evaluation of the act, to determine whether the other party’s alleged facts are delivered to another person.

(E) Determination of the possibility of spreading the public performance would result in an excessive expansion of the scope of punishment for the crime of defamation, and also contravene the principle of complementaryness of the Criminal Code.

Taking into account the possibility of disseminating the public performance judgment is to substitute the public performance required by the form of the act of defamation with the possibility of spreading, and to confuse the protected legal interest and degree of the act of defamation, which is an abstract dangerous offender, established solely with the risk of infringement without actual infringement of external reputation. The crime of defamation is punishable in cases where an abstract dangerous offender is at risk of damaging reputation due to the publicly alleged fact, and does not punish cases where the publicly alleged fact is at risk of damaging public performance. The reason for punishing the crime of defamation is not because the fact continues to spread, i.e., the risk of defamation that may occur by publicly expressing the fact, but rather because it is the risk of defamation that may occur by publicly expressing the fact.

In addition, if there is a possibility of dissemination of private dialogue or information with a particular minority, it is almost all factual acts that constitute the elements of defamation in principle. It is against the principle of supplement of the Criminal Code.

(F) It is difficult to set an objective standard to determine the possibility of radio waves, and therefore, it is highly likely that a person may intervene in the specific application. It is also true that it is difficult to set an objective standard to determine the possibility of radio waves in any case, even in accordance with the relationship between a factual reporter, the other party, and the victim. In the event of a statement of fact to a workplace club or a friendly club, it is difficult to objectiveize what extent it is closely related to the offender or the victim, and it is not easy to prove or determine the possibility of radio waves. Therefore, the possibility of radio waves is more likely to be included in the direction of “the possibility of radio waves,” without specific proof.

(G) The Act on Information and Communications Network Utilization and Information Network Utilization and Information Protection (hereinafter “Information and Communications Network Act”) requires a factual act to be open to the public even through the use of information and communications networks, and the concept of public performance is identical to that of defamation. Even through the development of information and communications networks, if a statement of fact is made only to a certain minority, it cannot be deemed that such act is still the subject of the regulation of defamation under the Criminal Act or the Act on Information and Communications Network Utilization and Information Protection (hereinafter “Information and Communications Network Act”). In other words, if a statement of fact is made through an information and communications network, for example, e-mail or SNS message, and a statement of fact is written or face to a certain minority, and it cannot be deemed that there was a general danger of infringement on reputation even if using information and communications networks. The issue of expanding the degree and scope of damage caused by the unauthorized storage and reproduction of information should be reflected in the sentencing or resolved by aggravated punishment, and the concept of public performance should not be changed

(h) The Majority Opinion considers that an act of expression conducted in a private relationship and space constitutes constituent elements to protect an individual’s reputation, and intends to expand the grounds for the elimination of illegality under Article 310 of the Criminal Act to further harmonize with the freedom of expression. However, the same applies to the protection of an individual’s reputation, and is nothing more than the Gu room to maintain the doctrine of spectrumability. Even if the grounds for the elimination of illegality under Article 310 of the Criminal Act are broad, the crime of defamation is punished as a crime of defamation insofar as the principal purpose or content of the statement is not public interest. Not only is the question how much a person has a public interest in private dialogue in a private space, but also the demand for it is also the same as the prohibition of a private gathering on a private subject. All citizens are not subject to criminal punishment except that the content of a private conversation does not enter the victim. This is to be regarded as a criminal who is not a potential or uncomfortable.

[2] [Majority Opinion] In a case where Defendant was prosecuted on charges of impairing Party A’s reputation by openly pointing out facts by speaking “A, before and after his husband’s death,” etc. on the back of the Defendant’s house, the case affirming the lower court’s consistent statement to the purport that “A” was “A”’s husband’s husband’s husband’s and wife’s relative, and that the Defendant and Party A were in conflict with neighbors’s residents, on the same day, and the Defendant took the above remarks in the process of having a dispute with Party A; the Defendant’s wife’s wife’s wife’s wife’s sound was humpted with the Defendant’s own house, and the Defendant did not have a big possibility to have a public-private relationship with Party A on the ground that “A” could not be seen as having a public-private relationship with Party A, and that the police officer, upon receipt of a report, could not be viewed as having a public-private relationship with Party A’s sexual intercourse for the same reason as “A’s sexual intercourse.”

[Dissenting Opinion by Justice Kim Jae-hyung, Justice Ahn Jae-chul, and Justice Kim Young-soo] In the above case, since the defendant's husband Eul and his husband Byung-dong's relative relation with the defendant's husband Byung cannot be deemed to have been in a situation where the unspecified or many unspecified persons could directly recognize the facts as to Gap, the defendant's act cannot be deemed to constitute a crime of defamation against Gap because it is difficult to see that the defendant's statement made it difficult to view that public performance exists, and the facts charged against Gap are the premise that the defendant's act of defamation can be acknowledged as a crime of defamation against Eul by applying the radio wave doctrine even though the other party Eul was 2, and it was revealed that Byung was a relative relationship with the defendant or the victim. As such, the points where the other party is in a special relation relationship with the defendant or the victim are in existence of public performance (the possibility of dissemination in case of majority Opinion). Thus, it is difficult to view that the defendant's statement was conducted with sufficient deliberation or proof as to the performance of the defendant, thereby affecting the conclusion of the judgment.

[1] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 243, 245, 307, 308, 309, and 310 of the Criminal Act; Articles 44-2(1) and (2), 44-7(1)2 and (2), 70, and 73 subparag. 5 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; Articles 82-4(3) and (4), and 251 of the Public Official Election Act / [2] Article 307(1) of the Criminal Act

[1] Supreme Court Decision 68Do1569 delivered on December 24, 1968 (No. 16-3, 94) Supreme Court Decision 81Do1023 delivered on October 27, 1981 (Gong1982, 85) Supreme Court Decision 81Do2491 delivered on March 23, 1982 (Gong1982, 482, 482, April 23, 1985) Supreme Court Decision 85Do431 delivered on April 29, 197 (Gong1985, 817, 1969) Supreme Court Decision 89Do86 delivered on July 11, 197 (Gong1989, 1268 delivered on May 26, 192)

Defendant

Defendant

Attorney Park Gyeong-tae

Gwangju District Court Decision 2020No359 Decided April 28, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. Defamation part

A. Case overview and key issues

1) Case overview

The summary of this part of the facts charged is that the Defendant’s husband, Nonindicted 2, and Nonindicted 3 heard from the back of the victim Nonindicted 1’s house, who publicly expresses the facts to the victim by expressing the victim’s “Is that I would have been sentenced to imprisonment with prison labor.” Although the Defendant argued that the performance is nonexistent, the lower court upheld the first instance judgment that found the Defendant guilty of the facts charged on the ground that the Defendant’s speech and the possibility of spreading the Defendant’s speech would be consistent with the facts charged.

The Defendant’s grounds of appeal are that Nonindicted 2 was already aware of the fact of the victim’s previous offense, and that Nonindicted 3 is the husband of the Defendant, and that Nonindicted 3 is the relative of the victim, so there is no possibility of spreading his speech

2) Issues

This part of the issue is whether the Supreme Court precedents established to recognize the public performance of defamation crimes even in a case where there is a possibility of spreading to many and unspecified persons. Furthermore, even if the precedents are maintained, it will review the precedents of the Supreme Court and examine the legal principles that can reasonably limit the standards of public performance or the scope of application of public performance.

B. The need for the provision of defamation and punishment

1) Provisions on defamation

Honor means the personal value that each person should enjoy on the basis of human dignity and social life, and this means the foundation for the maintenance of human dignity and the formation of relations with others. It means the social evaluation given to others as the protected legal interests of the crime concerning honor (see Supreme Court Decision 88Do1008, Sept. 27, 198, etc.). In order to protect the honor as a human value in criminal cases, it is regulated by various special laws, other than the Criminal Act, to regulate the violation thereof in addition to the Criminal Act, and each provision requires public performance as follows as the form of defamation.

Article 307(1) of the Criminal Act provides that “a person who defames a person by openly pointing out a fact,” “a person who defames another person by openly exposing facts through an information and communications network for the purpose of defameing another person,” and Article 251 of the Public Official Election Act provides that “a person who defames another person by openly pointing out a fact through a speech, propaganda document, etc. for the purpose of getting elected, or getting elected.” In addition, Article 307(2) of the Criminal Act provides that “a person who defames a person by openly pointing out a false fact,” and Article 308 of the Criminal Act provides that “a person who defames a person by openly pointing out a false fact,” thereby punishing “a person who defames a person by openly pointing out a false fact,” and Article 309 of the Criminal Act provides that “a person who commits a crime of defamation under Article 307(1) and (2) of the Public Official Election Act by openly revealing a fact through a newspaper, magazine, or other publication.”

Article 44-2(1) and (2) of the Information and Communications Network Act (hereinafter “Information and Communications Network Act”) prohibits the distribution of “information that defames by openly disclosing facts or false facts to the public” (Article 44-7(1)2 of the Information and Communications Network Act), and imposes criminal punishment on the provider of information and communications services who fails to comply with orders given by the Korea Communications Commission, such as restricting the Korea Communications Commission’s access to information that violates the Public Official Election Act (Article 73 subparag. 5 of the Information and Communications Network Act). In a case where any information violating the Public Official Election Act is posted on the Internet homepage, etc. or transmitted through the information and communications network, the provider of information and communications services may request the provider of information and communications services to delete the relevant information, etc. (Article 82-4(3) and (4) of the Public Official Election Act).

2) The need to punish defamation acts

Although there has been a debate on the abolition of the crime of defamation in fact (Article 307(1) of the Criminal Act), the Act on Information and Communications Network Utilization and Security is applied to the crime of defamation as well as the diversified method or the space where defamation takes place due to the development of science and technology, and the crime of defamation is being used on the Internet without stay in the crime under the Criminal Act. The scope and regulation of punishment is more expanded through the Special Act depending on the purpose, method and method of defamation act. There are parts that should be protected regardless of whether the facts known socially are true or true, and in particular, disclosure of the essential aspect of personal privacy, which forms the core of personal rights, is likely to seriously infringe on the fundamental rights of an individual. With the development of the Internet and SNS, the infringement of such reputation takes place in a large quantity, and the infringement of personal rights of an individual due to the development of sound Internet culture takes place in a state where it is impossible to recover personal rights due to the scarcity of privacy, and the side effects of suicide, such as suicide, are in good quantity and effective means to replace the current criminal punishment.

C. The meaning of public performance in the crime of defamation and the Supreme Court precedents

(i) the meaning of performance;

The relevant provisions of the crime of defamation require that an infringement of reputation may be “patently” or “publicly”. “Publicly” or “publicly” refers to “in advance, to the extent that the person is able to be aware of in the world,” and “discipherably disclosed without concealment or distance.” The intent to demand public performance as a form of action lies in punishing only defamation that is spread to society and harmful to the society, thereby preventing an excessive restriction on the freedom of expression of individuals.

The Supreme Court has revealed that the elements of defamation are "unspecified or many people's public performance" (see, e.g., Supreme Court Decision 92Do445, May 26, 1992; Supreme Court Decision 96Do1007, Jul. 12, 1996; Supreme Court Decision 2007Do8155, Feb. 14, 2008). This is a general opinion of academic circles.

2) Supreme Court precedents concerning performance

The Supreme Court has consistently held that the public performance of defamation theory is recognized when the other party could spread the facts known to an unspecified or many unspecified persons even if the facts were publicly known to the minority individually regarding the public performance of defamation.

In other words, in the Supreme Court Decision 68Do1569 Decided December 24, 1968, the first decision that "a public performance has been made so long as there is a possibility that the spread of the fact may spread to the public by spreading the fact continuously to the public even if the secret is not well-guaranteed or there is no possibility of spreading it to the outside," and then, in the Supreme Court Decision 81Do1023 Decided October 27, 1981, Supreme Court Decision 81Do1023 Decided December 27, 1981, where it is possible to spread the fact to many and unspecified persons even if there is a possibility of spreading it to the general public, it satisfies the requirements of public performance, but in the opposite case, the spread of fact to a particular person is lacking of public performance, and in the recent Supreme Court Decision 2018Do4200 Decided June 15, 2018, the above legal principle has been maintained.

This legal doctrine also applies to the determination of public performance, such as defamation using information and communications networks under the Information and Communications Network Act or a candidate corruption crime under the Public Official Election Act (see, e.g., Supreme Court Decisions 96Do1007, Jul. 12, 1996; 2007Do8155, Feb. 14, 2008); and it has been applied to the basic legal doctrine of Supreme Court precedents concerning the public performance of defamation crimes regardless of whether a publicly alleged fact is false or not, or whether it constitutes defamation under the Special Act.

D. Legal principles and validity of the Supreme Court precedents

As the Supreme Court has developed over a long time, it should be maintained as it is reasonable in light of the current legal and practical aspects. The following is to examine the specific contents and standards of the radio wave potential doctrine which the Supreme Court has developed, and thereby to clarify the grounds for maintaining the Supreme Court's precedents.

The view criticizes the legal principles on the possibility of radio waves is that there is no objective standard to determine the possibility of radio waves, so that a person can intervene in the specific application, and that the result alone is contrary to the principle of responsibility by recognizing excessive responsibility. While the content and grounds of criticism are unreasonable, the purport of ensuring the expansion of the scope of punishment is consistent.

The Supreme Court precedents and trial practices, based on the recognition of these issues, have strictly recognized the public performance by applying the doctrine on the possibility of radio waves, on the premise that recognition of the possibility of radio waves is necessary, in light of the following: (a) the specific and objective application standards of radio wave possibility is established; (b) the defendant’s criminal intent is strict; or (c) the possibility of radio waves is denied depending on the relationship between the other party in the statement and the defendant or the victim; and (d) the public performance has been strictly recognized by applying the doctrine on the possibility of radio waves under the premise that recognition of the possibility of radio waves is necessary.

1) Legal principles of Supreme Court precedents

A) proof of the possibility, awareness, etc. of radio waves

(1) Prosecutor’s strict burden of proof

Public performance is a constituent element of defamation and can be a flexible circumstance where public performance is denied in a factual case against a specific minority. As such, prosecutor’s strict proof is necessary for the possibility of dissemination (see, e.g., Supreme Court Decisions 96Do2234, Feb. 14, 1997; 2004Do207, Apr. 14, 2006). Furthermore, the Supreme Court held that “no act such as delivering personal or private information to a specific individual or minority may be performed. However, even if it is a specific individual or minority, if it is probable that a specific individual or minority can spread or spread it, it may be performed publicly, it may be deemed that a public performance is conducted.” In addition, the Supreme Court demanded a “restability” rather than a “restability,” to the extent of proving the possibility of dissemination (see, e.g., Supreme Court Decisions 81Do2491, Mar. 23, 198; 200Do896, Jul. 186, 198).

(2) The internal intent to allow recognition and risk of radio wave feasibility;

The Supreme Court held that “In cases where the public performance of defamation is recognized on the ground of radio wave possibility, dolusent intent is required as a subjective element of the constituent elements, so it is necessary to have dolusent intent as well as to have an intent to deliberate on the possibility of radio wave, and further, it is necessary to consider how to evaluate the possibility of radio wave if the general public is based on specific circumstances, such as the form and situation of the act externally revealed, etc. (see, e.g., Supreme Court Decision 2004Do340, Apr. 9, 2004).” The Supreme Court emphasized that the perpetrator’s intentional intent needs to be careful in recognizing the possibility of radio wave.

As a result, Supreme Court Decision 2018Do4200 Decided June 15, 2018 rejected the intention of defamation in a case where the Defendant made a statement that defames another person among the questions about which the Defendant intended to verify the unexpected truth. Supreme Court Decision 2016Do21547 Decided January 30, 2020 held that even though the other party in the statement did not have any special relationship with the Defendant or the victims, the Defendant did not have any intent to allow awareness and risk of the possibility of radio waves in light of the circumstances and contents of the statement. Meanwhile, Supreme Court Decision 200Do5711 Decided April 10, 201 ruled that public performance was illegitimate in a case where the Defendant made a statement about the victim in the course of investigating the dispute with the victim at the police station, and Supreme Court Decision 89Do1467 Decided April 27, 190 that denied the non-Confidence in the process of explaining the victim’s reputation in the process of explaining the reason for public performance by the president of the association.

In full view of the foregoing, if a statement was made in the process of confirming or identifying facts in relation to the duties of an organization, etc., or when a statement was made in the process of responding to other party's harm, or when a statement was made in the process of responding to the other party's harm in an official procedure, such as an investigation and litigation, etc., it should be careful to recognize the speaker's intent to recognize his/her awareness and risk as to his/her possibility of spreading. However, unless the crime of defamation is confirmed or discovered, response to harm, investigation and litigation, etc., it can be used as a means of preventing legitimate acts such as confirming or identifying facts, responding to harm, etc.

B) Specific criteria for determination

The existence or absence of a performance shall be deliberated on all the objective circumstances at the time of the act, including the relationship or status between the speaker and the other party or the victim, the details and situation of the conversation, the factual content at the time of the conversation, and the method and place of statement, etc. (see Supreme Court Decisions 2007Do8155, Feb. 14, 2008; 2007Do8155, Feb. 14, 2008; 2008; 300Do81023, Oct. 27, 1981; 300Do4579, Feb. 11, 200).

Therefore, even in accordance with the radio wave potential doctrine, the possibility of radio waves can be determined according to the above objective criteria, and the perpetrator can sufficiently anticipate the performance at the time of speaking, and the other party’s intent of radio waves alone does not hold the responsibility with the result that the radio wave potential was determined or actually disseminated.

In particular, in cases where the other party to a speech has a private-friendly relationship, such as the spouse, relative, or relative of a speaker or victim, if a public official who is required to perform his/her duties or to process it, or in a position similar thereto is in a position similar thereto, performance is denied in cases where the secret is considerably expected to be ensured due to such relationship or status (see, e.g., Supreme Court Decisions 78Do473, Apr. 25, 1978; 81Do1023, Oct. 27, 1981; 84Do86, Mar. 27, 1984; 99Do4579, Feb. 11, 200; 202Do4800, Nov. 26, 2002).

In cases where the speaker, the other party, and the injured party are in a special relationship as above, and where the other party has a special position or status in the course of performing duties, there is a special circumstance to recognize a performance in a factual act against the other party in order to recognize a performance in relation to a factual act.

C) Sub-determination

The Supreme Court has developed the detailed criteria for determining the possibility of radio waves so far, and on the other hand, has established a variety of restrictive legal principles regarding factual inspections on a specific minority. The core is only insufficient to recognize the possibility of spreading a speech on an individual minority to an unspecified or a large number of unspecified people on the grounds of the possibility of spreading the speech to an unspecified or a large number of unspecified people, and it requires a high level of possibility and possibility, and a strict certification of the prosecutor.

2) The occurrence of danger of undermining honor and the interpretation of the public performance;

Although the provision of defamation provides that “a person who defames a reputation,” it is not an offense of defamation but an offense of abstract danger is distinct from the value of the act of defamation and the value of the result. In other words, the infringement of reputation, which is the legal interest of the crime of defamation, cannot be objectively confirmed and cannot be proven. Therefore, even if an unspecified person or a large number of people did not actually recognize the facts indicated, the reputation shall be deemed to have been damaged, and it shall not be evaluated as an impossible offense or attempted offense. Such interpretation as to the public performance refers to the aspect of the possibility that an unspecified person or a large number of people can recognize, and such interpretation is permissible in the principle of no punishment without law, and there is a need for criminal punishment

The purpose of defamation is to protect an individual’s reputation regardless of the truth and to protect the individual’s social assessment regardless of the truth, and the alleged facts should be made to the extent that it may infringe on the individual’s social assessment (see, e.g., Supreme Court Decisions 94Do1770, Oct. 25, 1994; 98Do2188, Feb. 25, 200). However, it is sufficient that the risk of infringement has occurred and does not require the result of infringement. As such, even if the statement of facts was made to the majority as well as the statement to the minority, it may be interpreted that the statement was made publicly, even if the statement resulted in a situation in which many unspecified persons or many people can recognize.

In our criminal law, there is a difference between Germany and Germany, which regard the public performance of the crime of defamation as an aggravated requirement for punishment, interpretation should also be made in line with our criminal law system. Furthermore, if the performance requirement on the ground of foreign legislation is excessively narrow differently from the text of the law, it may bring about the result of limiting personal rights for the freedom of expression. In particular, due to the development of the Internet and various information and communication technologies, information and privacy on individuals are easily exposed and the case in which the right to self-determination of personal information is lost due to the development of the Internet and various information and communication technologies, the area related to personal privacy should be strictly protected, and it shall not be allowed to be invaded on the ground of the freedom of expression. The individual’s personal rights, privacy protection and freedom of expression should be protected within each individual’s territory as a fundamental right guaranteed under the Constitution and in conflict with each other, it is not possible to sacrifice one another to protect one another.

3) The meaning and content of the performance due to changes in communication methods and structure.

Since the meaning of public performance is not fixed, its concept and contents may vary depending on the changing of times or the development of information and communications networks. In our society, there is little doubt about the basis for another person’s status, social status, activities, etc., or in cases where a question is made through an information and communications network, such as the Internet. Even in cases where the alleged fact is not a false fact, there is a lot of situation where there is no difference between the cases where a person actually injures another person’s reputation by pointing out false facts in the manner of indicating the alleged suspicion, biased opinion, or unfair evaluation in addition, or where it severely damages another person’s social evaluation. Furthermore, the impact of the traditional values of our society focusing on reputation and body, and defamation and defamation in information and communications network such as the Internet has already reached a serious situation. Accordingly, even in cases where the freedom of expression is guaranteed, considering the unique characteristics of our society as above, the need to regulate such defamation is very important (see, e.g., Constitutional Court en banc Decision 2016Hun-Ba235, Feb. 13, 2015).

The legal doctrine on the possibility of radio waves accords with the concept of public performance in various types of defamation penal regulations, such as information and communications networks. With the development of mobile technology, such as the Internet and smartphones, most of the expression of intent or communication through information and communications networks such as SNS, e-mail, portal sites, etc., and accordingly, defamation via information and communications networks is also rapidly increasing. The intrinsic nature of the process of information and communications networks and information distribution lies in non-defluence, accessibility, pseudonymity, connection, etc. As such, defamation via information and communications networks is easy to store, reproduction, and its boundary is unclear, and defamation via information and communications networks is likely to occur in many cases where an act constitutes a situation in which many unspecified persons or many unspecified persons can recognize, even though the content of defamation was sent to a minority. In particular, defamation via information and communications networks has been easily lost the control potential of the information publicly expressed by the actor, and the degree and scope of infringement of the victim’s defamation is widened due to rapid spread, thereby making it impossible to do so through the counterargument and debate on the expression.

Therefore, the above characteristics of the information and communications network should be considered in interpreting the current method and quantity of defamation. The Supreme Court precedents have applied the standard of public performance determination in cases of defamation using such information and communications network taking into account the above characteristics. In other words, Supreme Court Decision 2009Do9396 Decided November 12, 2009 recognized performance by the defendant on the ground that the defendant could have disseminated e-mail in light of the circumstance and contents of sending e-mail to the workplace employees, and the Supreme Court Decision 2019Do6916 Decided July 5, 2019 (hereinafter “2019Do6916”) was acceptable in the case where the defendant sent 200 Kakakao message to a candidate who sent 200 as an officetel candidate, on the ground that the other hand, the victim or the other party could have known 20 Kakaoo Kao Kao 200 on the ground that in light of dispute or the other party’s status, the court below's decision was acceptable.

As to defamation by using information and communications networks, it is difficult to function as a solution if the other party directly knows or the other party does not satisfy a certain minority performance. Rather, even if it was delivered to a certain minority, examining whether there was a general risk of infringing on the individual’s social evaluation by considering whether there was a possibility of dissemination to an unspecified or a large number of individuals is consistent with the judgment of substantial performance and it can serve as a specific standard to limit the scope of performance. The meaning of performance should be equally applied in the Criminal Act and the Special Act on Information and Communications Network Act, etc.

E. New criteria for determining the grounds for excluding illegality under Article 310 of the Criminal Act

1) The need to expand the illegality of the content of the statement

As seen above, the legal principles on the possibility of spreading recognized in precedents should be maintained in determining the public performance of defamation.

However, in addition to the criteria for determining public performance according to the form of act, it is necessary to determine whether to punish “content of statement” separately from the criteria for determining public performance. Unlike Germany and other foreign legislation, our criminal law is punished as defamation even in a case where a statement of true facts is made, and it does not prevent the formation of a sound public opinion or the balanced development of democracy by punishing others for fair criticism. The UN Human Rights Commission also recommended the Parties to decriminalize or limit the application of defamation. Accordingly, even if it constitutes the element of defamation for the sound self-determination of our society through harmony with the freedom of expression, criminal punishment should be imposed if it constitutes fair criticism.

2) Scope of recognition of grounds for excluding illegality under Article 310 of the Criminal Act

Article 310 of the Criminal Act provides that “When the act under Article 307(1) is true and solely for the public interest, the act shall not be punishable.” This is intended to harmonize the protection of an individual’s reputation and the freedom of expression with the aforementioned grounds for the exclusion of illegality in the crime of defamation. If a strict requirements for the exclusion of illegality, i.e., certification of truth and the public interest, are required, the scope of the criminal sanction is widened and the freedom of the press is narrow. If a criminal punishment is imposed against a value-based public issue or a case (right to know) to which a citizen ought to know, without free criticism or debate, the freedom of the press is reduced, and the degree of comparative sentence is likely to be reached on the side of the protection of reputation (see, e.g., Constitutional Court en banc Decision 97Hun-Ma265, Jun. 24, 199).

The Supreme Court has gradually recognized Article 310 of the Criminal Act in light of the aforementioned purport. The language and text of Article 310 of the Criminal Act provides that illegality shall be removed only when a person expresses “definite facts”. However, even if there is no true fact or proof of true facts, it includes cases where an actor believed it as true (see, e.g., Supreme Court Decisions 4294No. 12, May 17, 1962; 85Meu29, Oct. 11, 198). The term “definite facts” means facts that are consistent with objective facts in light of the overall purport of the contents, and even if there is a somewhat exaggerated expression, there is no difference from the truth or exaggeration. In addition, Article 310 of the Criminal Act provides that illegality is excluded only for “when a person expresses a “definite public interest” under the language and text of Article 310 of the Criminal Act, but it also includes the motive or purpose of application of Article 208 of the Criminal Act with respect to the general public interest or other interests.

3) New criteria for determining “public interest”

Article 193 of the German Criminal Code provides, “In the event of criticism on academic, artistic, and business capabilities, the presentation of critical opinions made to exercise or defend rights, or to exercise legitimate interests, disciplinary action and reprimand against his superior’s father, official accusation or criticism against a public official, or in other similar cases, he/she may be punished only when insult is recognized in light of the form of the presentation of opinions or the circumstances in which the presentation of opinions is made.” The foregoing provision does not relate to the public interest but to the protection of legitimate interests, thereby ensuring the freedom of expression by stipulating that there is no punishment for defamation, etc. if the infringing person’s infringement is related to the legitimate protection of interests.

Considering the foregoing legislative cases, the recommendations of the UN Human Rights Commission on Human Rights, and the freedom of expression, “public interest” under Article 310 of the Criminal Act should also be recognized more broadly in cases of a statement of true fact. In particular, considering that the concept of public interest-relatedness is changed depending on the times and the public interest-related concept is also changed without a certain number of times depending on circumstances, only public figures, institutions, policies, etc. should not be limited to public interest-relatedness.

Therefore, even if the content of factual City is related only to a part of the general interests of society, if it is related only to a community life with other general public, it shall be deemed public interest. Furthermore, even if it is related to an individual, if it is related to the public interest and has gained social interest, it shall not be excluded from the application of Article 310 of the Criminal Act solely on the ground that it is not directly related to the interests of the State and society or a specific social group. Even if it is a private person, the application of Article 310 of the Criminal Act should be determined

F. Determination on the case

1) Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts and circumstances.

A) The Defendant and the victim were in conflict with neighboring residents, and on the day of the instant case, the Defendant made a statement in the same manner as the facts charged in the course of the victim’s verbal dispute with the victim on the back of the day of the instant case.

B) Nonindicted 2, the husband of the Defendant, and Nonindicted 4, the wife of the victim, were heard the sound that the Defendant and the victim argued in their respective house, and the victim and Nonindicted 4 consistently made a statement to the effect that “the Defendant had significantly sounded as a criminal record, and that the Defendant had also participated in the village as well as Nonindicted 3.”

C) In front of the police officer who was called upon receiving a report, the Defendant had a large voice that “the victim was a person before bad faith.”

D) Although Nonindicted 3 had a criminal record of the victim due to the gymmetric village with the same sex as the victim and Nonindicted 3, it seems that Nonindicted 3 stated that “the victim first testified from the defendant that he was a criminal record, the victim was a criminal record,” and that it was not close to the victim.

2) Examining these facts in light of the legal principles as seen earlier, in light of the fact that Nonindicted 3 and the victim’s friendly degree or objective fact is about an individual’s personal history, which can be disclosed to the public, and that it is highly probable that Nonindicted 3 would have a close relation with the victim, it cannot be deemed that the possibility of dissemination is denied solely on the ground that Nonindicted 3 was in a relationship with the victim (no degree of relationship or specific friendly relationship has been revealed between the victim and Nonindicted 3). Rather, in the course of a fighting with the victim’s fighting with the victim, it is reasonable to view that the Defendant expressed a large voice at an open place in order to insult or slander the victim, and thus, the Defendant’s remarks in the Defendant’s charge was recognized as a performance.

The lower court did not err by misapprehending the legal doctrine regarding the public performance of defamation, contrary to what is alleged in the grounds of appeal.

2. Part of the assault against the victim Nonindicted 5, etc. and the victim Nonindicted 6

For the reasons indicated in its holding, the lower court upheld the first instance judgment convicting of each of the charges charged. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the expression of intent not to punish

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Jae-hyung, Justice Ahn Jae-chul, and Justice Kim Seon-soo, and a concurrence with the Majority by Justice Park Sang-ok and Justice Min You-sook.

4. Dissenting Opinion by Justice Kim Jae-hyung, Justice Ahn Jae-chul, and Justice Kim Seon-soo

A. The Majority Opinion purports to maintain the legal doctrine on “public performance” which is the constituent element of the crime of defamation. However, performance as referred to in the crime of defamation is a concept that does not include the possibility of dissemination. Performance as referred to in Article 307(1) and (2) of the Criminal Act refers to the state in which an unspecified person or a large number of people can be directly recognized, and performance as referred to in Article 307(1) and (2) of the Criminal Act refers to a certain individual or a large number of people, and even if there is a possibility that a public performance may be disseminated from a certain individual or a large number of people, it cannot be said that the requirements of public performance are satisfied. The Majority Opinion’s interpretation of the Criminal Act is to punish criminal punishment beyond the scope scheduled by expanding and applying the elements of the crime of defamation, and it does not agree with the principle of no punishment without the law and interpretation of the Criminal Act. The Supreme Court Decisions 68Do1569 Decided Dec. 24, 196; 85Do431 Decided April 23, 2005.

The detailed reasons are as follows.

B. The recognition of a public performance on the ground that there is a possibility of radio wave constitutes an analogical interpretation prohibited by the principle of no punishment without law by extending the disadvantage to the defendant.

The interpretation of the text is the starting point of legal interpretation. In the interpretation of the penal law, it is not allowed to expand the scope of punishment by analogy beyond the possible meaning of the text. Therefore, the more important meaning of the text should be accepted in interpreting the penal law.

Article 307(1) of the Criminal Act of the Republic of Korea provides that “public performance” and “public performance time” as the basic constituent element of the crime of defamation (Article 307(1)). In a case where a false representation is made, the statutory penalty is not sufficient compared to a factual defamation (Article 307(2)). As such, even in a case where a finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite fin

The legislative intent of determining the public performance as a constituent element of the crime of defamation lies in punishing only to reveal the facts “social” or “publicly” beyond the framework of private dialogue or information delivery, among acts that may undermine the evaluation of the value of human being. The legislative intent of the crime of defamation is to punish only where a fact that may infringe another person’s reputation is disseminated in society. This is to narrow the scope of the establishment of the crime of defamation, thereby ensuring the freedom of expression under the Constitution as much as possible.

The term “patent” refers to “patently, clearly and openly known from world,” as in the Korean language’s prior expression. In Article 307 of the Criminal Act, the act of practice itself should be made openly as a requirement to limit the appearance of expressing facts or false facts, and it is apparent in a literal interpretation that an act of practice not openly performed is not subject to punishment for defamation. Article 70 of the Information and Communications Network Act, which punishs defamation using information and communications networks, uses the expression “publicly” instead of “patently”, and made clear the meaning of performing public performance more than one story.

Even if the intent of “patent” or “public” is expanded and interpreted in any way, it cannot be deemed that the expression “publicly and openly expressed” or “publicly, regardless of concealment or distance,” by stating that it was private speech to a minority’s friendship, workplace rent, etc., and made a speech.” Even if the aforementioned act was caused by the foregoing act and subsequently spread to an unspecified or large number of unspecified persons, it cannot be punished as defamation unless the act itself explicitly expresses a fact.

In the Supreme Court decision, a large number of conversations are included in a case of recognizing a performance on the grounds of radio waveability, as seen above, in a private relationship, such as a friendship and work bonus. Even if the other party promises to protect confidentiality, the dynamic dialogues that the other party promises to protect confidentiality are recognized as a medium of radio waveability.

Supreme Court Decision 68Do1569 Decided December 24, 1968, which appeared as the first precedent, was the case where the defendant expressed to the same Dong Ne residents at his own house. Supreme Court Decision 85Do431 Decided April 23, 1985, which found the defendant's lawsuit against the victim against the husband and wife attending the same church. Supreme Court Decision 2005Do329 Decided March 25, 2005, which recognized the defendant's false information about the victim by telephone. The Supreme Court Decision 2017Do13231 Decided November 3, 2017, which recognized the possibility of spreading the above decisions from the defendant's toilet room to the same Dong Neng residents. The Supreme Court Decision 85Do431 Decided April 23, 1985, which recognized the victim's public performance and the defendant's private performance as 2005Do1608 Decided 296 Decided May 26, 2017.

In the above case, whether the Defendant’s remarks or expressions may be deemed to have been “to the extent that it would be obvious to know in the world, and to hold a fair decision? It goes beyond the expectation of the legislators, and is not required to have a legal reason.

A person makes a statement while exchanging with others and enhancing sociality. The horses are the most important means to lead a person and build a social relationship. The freedom to speak is the core right that constitutes the freedom of expression. The speech, such as the inner gate, “unexploded speech Da................” The phrase, which is itself, serves as a key right to the freedom of expression. The punishment for another person solely on the truth, falsity, or the possibility of radio waves, does not fit the inherent nature of human beings, and is seriously threatening the freedom of expression guaranteed by the Constitution. Therefore, the reason for demanding performance in the crime of defamation is to create a hidden room for the freedom of expression, taking into account the inherent nature of human beings as above. The recognition of public performance on the grounds of the possibility of dissemination is not desirable in terms of guaranteeing fundamental rights under the Constitution.

The possibility of radio waves means that such a result has not yet occurred but may be disseminated in the future. The rationale for punishing “the possibility” that will be disseminated in the future is obviously contrary to the principle of no punishment without the law. It does not vary on the ground that the possibility of public performance is changed to a probable degree. According to the Majority Opinion that recognizes the possibility of public performance as a crime of danger - it is subject to punishment on the ground that there is “the possibility” that the act may be disseminated and performed even in the event that the act is not publicly performed. Such interpretation is clearly unfavorable to the defendant and constitutes an unreasonable extended interpretation and analogical interpretation that should not be permitted.

C. The radio wave potential doctrine is contrary to the principle of no punishment without law and clarity.

The criminal law is based on the principle of no punishment without the law and the principle of clarity. The principle of no punishment without the law that crimes and punishments must be provided in the law is the major principle of criminal law. The principle of clarity that criminal law should be clear so that the general public can know how their actions are punished is important criminal law.

The Criminal Act clearly prescribes that “an act that publicly expresses facts or false facts” shall be punished. Whether the crime of defamation is established ought to be determined based on whether the factual act itself has a public performance, rather than whether the publicly alleged fact has a possibility of spreading. In such a case, whether performance is performed by analyzing the nature or appearance of an act in question, whether the act was committed against an unspecified or many unspecified persons, and whether the factual act was perceived or could have been recognized in a public place, etc., and whether such situation may be deemed to have been socially or openly disseminated.

The law on the possibility of radio waves is against the principle of no punishment without law because it creates a new constituent element of the possibility of radio waves in addition to the public performance, which is the constituent element of the crime of defamation.In addition, the law on the possibility of radio waves harms the principle of clarity, thereby undermining the function as a norm of the crime of defamation, and allowing the application of the law to arbitrarily operate

D. The radio wave potential doctrine is an obstacle to the consistent and systematic interpretation of the performance of other crimes, which constitute the elements of performance.

Article 243 of the Criminal Act provides that the crime of openly displaying and screening, such as noise, etc., requires performance by stipulating that “a person who openly exhibits or shows noise, etc.,” thereby constituting the elements of performance. Supreme Court Decision 73Do409 Decided August 21, 1973 ruled that “The openly displaying of noise, etc. is protruding to a state in which an unspecified or many unspecified persons can view noise, etc., and it does not constitute such a state where only a certain minority can be seen” does not take into account the possibility of spreading the same differently from the performance of defamation.

The elements of public performance and obscenity under Article 245 of the Criminal Act are to punish “a person who publicly commits an obscene act,” and the Supreme Court interpreted the performance of the above crime as the condition in which an unspecified person or a large number of people can know the public performance (see Supreme Court Decision 2000Do4372, Dec. 22, 2000, etc.). Since a public performance and obscenity crime is established only in the case of obscene act in which an unspecified person or a large number of people can directly recognize it, it cannot be interpreted as the possibility of spreading the performance of the above crime. Supreme Court Decision 200Do4372, Dec. 22, 2000, supra, supported the judgment of the court below that “a public performance and obscenity is not recognized because, even if a person is an apartment elevator, it cannot be viewed as a state in which an unspecified person or a large number of people can recognize it as obscene act”. The Supreme Court held that performance and obscenity of a public performance and obscenity

The crime above is a social legal interest, but the said legal interest is commonly demanded as a constituent element. The reason is to punish an individual act that infringes on the legal interest of each crime directly spreads or is exposed to society, thereby causing harm to others or infringing on the legal interest of defamation. The same applies to the legislative intent that sets the public performance of defamation as a constituent element.

The meaning of public performance should be interpreted equally in various crimes that constitute public performance in the criminal law, etc. It is consistent with the legislative intent of each provision and the systematic interpretation of the criminal law. Unlike the crime of public performance or the crime of displaying and screening public performance, the crime of defamation, including the possibility of spreading to the concept of public performance, has collapseed the uniform interpretation of the criminal law, and it cannot avoid criticism that there is no consistency in the public performance.

E. Determination of public performance as to whether the other party is likely to spread in a factual context constitutes a violation of the predictability of the offender and thus imposes an obligation on the offender as a result of the infringement. This goes against the evaluation method of criminal law.

In criminal law, the nature of illegality is both value and result-value, and the method of evaluating such illegality is carried out in a way that grasps the ownership relationship between the two parties in order to verify the result derived from the first examination of the nature of the act objectively revealed. In other words, it is the illegality of the act to first grasp in the unlawful judgment of criminal law. It is necessary to judge the illegality of the act based on the person who committed the act that has damaged another person’s reputation by openly pointing out facts.

The determination of performance does not coincide with the aforementioned determination method, depending on the existence of a factual reporter, the other party, and the victim’s relationship. It is not an illegal evaluation of an offender’s act, but the last day of the fact is to determine the illegality of the offender by taking into account the status or role of a third party. In other cases than crimes requiring performance, such as defamation, the determination of performance according to such circumstances goes beyond the predictability of the offender, even in cases where it is impossible for a third party abutting on the facts identified by the actor to know which they had any relationship with the victim. This is difficult to anticipate the possibility of spreading to an unspecified or many unspecified persons at the time of the act.

The Criminal Act does not have a general element to punish infringement and danger of all legal interests, and only a specific act constituting the elements of a crime is subject to punishment. However, the legal doctrine on the possibility of dissemination focuses on the result of infringement of reputation or occurrence of danger, which is, the evaluation of illegality of a specific act prescribed as the elements of defamation, i.e., the act publicly indicating a fact, e., the evaluation of illegality of defamation. In this respect, the legal doctrine on the possibility of dissemination of defamation is deemed to have a reflect

In a case where the first generationist repeats the act of expressing facts to a specific minority, it may be deemed that the requirements for public performance are satisfied. However, in a case where the other party spreads such facts to an unspecified or many unspecified persons, defamation facts from the first generationist is not the first generationist, but the one who is the other. If the first generationist intentionally intended the other party’s propagation of defamation, then the other party becomes the principal offender of the crime of defamation, and the first generationist is the method of resolving the matter by the doctrine of the crime of defamation or the crime of aiding and abetting. In other words, the method of punishing the perpetrator who intends to use such information in consideration of the other party’s possibility of spreading ought to be the legal doctrine of the accomplice

Even in cases where the first generationist stated the facts of defamation to a specific minority, and where it is impossible to find a person who actually disseminated such fact, the first generationist cannot be punished as a crime of defamation, and such cases cannot be viewed as a gap in punishment. Therefore, deeming that the possibility of dissemination of performance is included in order to prevent the gap in punishment, is erroneous in the legislative purport that the public performance is stipulated as the elements of the crime.

Ultimately, determination of whether or not the other party's alleged facts in the crime of defamation should be made based on whether or not the other party delivers another party's alleged facts to the third party is liable for the result of the crime on the ground of an ambiguous circumstance that should not be considered in the illegal evaluation of the act.

F. Determination of the possibility of spreading the public performance would result in an excessive expansion of the scope of punishment for the crime of defamation, and also contravenes the principle of supplement under the Criminal Act.

According to the language and text of Article 307(1) of the Criminal Act, the crime of defamation is not established on the ground that the facts against the victim were publicly alleged, but only when such facts were damaged with the victim’s reputation. If the crime of defamation is deemed an abstract dangerous crime as stated in the Majority Opinion, the form of the act is an important element to determine whether the crime is established or not, and the penal authority is excessively expanded only when the form of the act is strictly limited. Furthermore, even if the true fact is publicly alleged, there is a great need to limit the scope of punishment as the crime of defamation.

Taking into account the possibility of disseminating the public performance judgment is to substitute the public performance required by the form of the act of defamation with the possibility of spreading, and to confuse the protected legal interest and degree of the act of defamation, which is an abstract dangerous offender, established solely with the risk of infringement without actual infringement of external reputation. The crime of defamation is punishable in cases where an abstract dangerous offender is at risk of damaging reputation due to the publicly alleged fact, and does not punish cases where the publicly alleged fact is at risk of damaging public performance. The reason for punishing the crime of defamation is not because the fact continues to spread, i.e., the risk of defamation that may occur by publicly expressing the fact, but rather because it is the risk of defamation that may occur by publicly expressing the fact.

Inasmuch as the Majority Opinion interprets that public performance may be recognized by an unspecified or multiple persons, the crime of defamation may be consummated if a fact that may harm reputation is recognizable to an unspecified or many unspecified persons. This, even if tort liability is not established under the civil law that may arise as a result of infringement of defamation, recognition of illegality and recognition of the crime of defamation is recognized. However, the crime of defamation is recognized prior to reaching the stage of such risk. In other words, the likelihood of spreading to an unspecified or many unspecified persons and the actual state thereof are the same.

The Majority Opinion deems that the former indirectly causes a situation in which an unspecified or multiple number of people can be recognized, but the factual act with respect to a specific minority cannot be deemed as an indirect occurrence of a situation in which an unspecified or multiple number of people can be recognized. In the event that the other party does not spread to anyone to whom it is deemed that such risk has occurred only when the actual fact is publicly known, the infringement of honor does not occur. In this respect, the Majority Opinion ultimately imposes liability for the result of an act that is not subject to punishment of defamation upon the other party’s intent and dissemination. This is a matter arising from the inclusion of an act that is not subject to punishment of defamation into a performance element. The Majority Opinion’s effort to objectively determine the possibility of dissemination or demand awareness of the possibility of dissemination and restrict the scope of punishment cannot be a fundamental solution.

In addition, deeming that there exists a performance in the case of private dialogue or delivery of information with a specific minority is almost all factual acts as a matter of principle, and contrary to the principle of supplement to the Criminal Act. If we look like above, it can be punished as punishment for a private and personal factual act naturally occurring in the daily life. Therefore, such interpretation is a crime committed even before the risk of undermining the reputation of an individual is created by factual acts with an unspecified or many unspecified persons, and is more abstract and abstract, which is an abstract dangerous crime.

(g) it is difficult to set objective criteria to determine the possibility of radio waves, so it is highly likely that persons will intervene in specific application.

It is also true that it is difficult to set an objective standard as to which case the possibility of radio waves is possible even if based on the relationship between a factual reporter, the other party, and the victim. In the event of a statement of fact to a workplace partner or a family member, it is difficult to objectiveize what extent it is closely related to the offender or the victim, and it is not easy to prove or determine it, and therefore, it is not easy to prove or determine it, the possibility of radio waves is more likely to be included in the direction of “the possibility of radio waves even without specific proof.”

Even if the other party is deemed to have a close relationship with a victim or a publicly alleged person, there are cases where the other party disseminates it to an unspecified or many unspecified persons (the premise that the details of the dissemination are not revealed), and where the other party does not actually spread it, even if it is deemed that it is not closely related thereto. In the latter case, there is an unreasonable result that the public performance of defamation is acknowledged solely based on the abstract and ambiguous standard, which is a close relationship, even though the fact of defamation does not bring about a risk of being aware of the general public, and rather, the former is not punished on the ground that there is no possibility of dissemination. Such interpretation is apparent that it does not conform to the purport of the crime of defamation as the constituent elements.

There are still cases where different judgments on the possibility of radio waves have been issued even in cases where the other party and his/her personal relations are similar to those of the other party. Among the cases affirming the possibility of radio waves, there are cases where the other party in the statement is a middle school of the defendant and the victim (Supreme Court Decision 2005Do329 Decided March 25, 2005), those where the other party acts as an agent for the legal affairs of the victim (Supreme Court Decision 2015Do9019 Decided January 14, 2016), and those where the other party acts as an employee of the defendant (Supreme Court Decision 2017Do13231 Decided November 3, 2017). Of the cases where the possibility of radio waves is denied, there is no possibility that the other party has a specific relationship between the victim and his/her workplace (Supreme Court Decision 98Do1949 Decided September 8, 198).

Moreover, taking the “whether or not the other party has spread to a practical system” as an element of determining performance reveals the problem of determining whether the crime of defamation is established according to the friendly outcome of the other party’s dissemination (Majority Opinion is considered as above, given such criticism, the issue of whether or not the other party has spread should be considered only for passive reasons. However, Supreme Court Decision 94Do1880 Decided September 30, 1994, etc. takes into account the active circumstances of recognition of performance recognition). In the crime of defamation, the public performance is replaced with the concept of propagation possibility, which is not prescribed as an element of punishment, even though the private conversation or communication of information to a specific minority was excluded from the scope of punishment.

H. There is no reason to view the concept of public performance differently even if it is defamation via information and communications networks.

As the Information and Communications Network Act requires a factual act to be openly performed even when using information and communications networks, the concept of public performance is the same as the performance of defamation. Even through an information and communications network, if only a certain minority expresses facts, it cannot be deemed that such act still constitutes a performance, and such act is not subject to the regulation of defamation under the Criminal Act or the Information and Communications Network Act. In other words, using information and communications networks, such as information and communications networks, e-mail or SNS messages, and using a letter or face-to-face statement to a specific minority is identical to the form of indicating facts to the specific minority, and cannot be deemed as having caused a general danger of infringement of reputation.

The problem of wide range of damage of defamation caused by theless storage and reproduction of information due to the development of the Internet and science and technology should be reflected in the sentencing or resolved with the aggravated punishment by the Information and Communications Network Act, and there is no need to change the concept of public performance for this reason.

I. emphasizing the punishment of defamation by expanding the scope of public performance through the doctrine of radio wave potential is far away from the legislation trend of a foreign country.

The offense related to honor was derived from the Roman Law and the Lao Law, which is a system for power or control rank, which has existed in order to prevent the criticism of the general public. In fact, our society has such experience several times. In recent years, defamation crimes act as a means to prevent the free expression of opinion of the victims of sexual assault, and rather, there are contradictory situations in which the victims are subject to criminal punishment.

In order to realize the freedom of expression, which is the most important fundamental right of democracy, each country has abolished criminal punishment for defamation and resolved it in a civil way. In the 20th century, most of defamations are resolved by civil means, and even if criminal punishment is imposed in some states, there are little cases actually applicable. While the UK has long been disadvantageous to the Kingdom of defamation by criminal punishment for defamations, the criminal punishment for defamations has been reduced in order to guarantee the freedom of expression from the late 19th century, and in 2010, Germany abolished defamations (Article 186 of the German Criminal Act). In Germany, if it proves that defamation is true, it shall not be punished as defamations (Article 186 of the German Criminal Act), and in France, imprisonment with prison labor for defamations cannot be imposed (Article 29 through 32 of the French Freedom Act).

In order to guarantee the freedom of expression, the UN Human Rights Commission recommended that the Special Reporting Board of Human Rights should allow truth defense in the crime of defamation and that the offense of defamation should not be taken into account and that the offense of defamation should not be detained on the ground of defamation (UNFCCC, General Rmitte, General Rmitt No. 34, 19, Fretain and ex officio, 2011, CCPR/C/C/34, par. 47). Furthermore, the United Nations Special Reporting Board of Human Rights recommended that the Republic of Korea abolish the offense of defamation under the Criminal Act. The criminal punishment of defamation is not justified in light of the effect that criminal punishment is too chilling the right to freedom of expression and that defamation can be properly resolved by damages under the Civil Act.

However, the Criminal Act of the Republic of Korea is still subject to criminal punishment even when a statement of true facts is made, and it is not related to the public interest. In addition, since the Supreme Court accepted the radio wave potential doctrine recognized by the Japanese precedents in 1968, it cannot be denied that the scope of criminal punishment is widened by recognizing the private dialogue between individuals and thereby causing a chilling effect on the freedom of expression.

The Majority Opinion attempts to broadly recognize the public interest of Article 310 of the Criminal Act for freedom of expression, but this is not a fundamental solution to the problem, and its future change. In other words, it is first to strictly interpret the scope of public performance in consideration of the purpose of establishing public performance in the crime of defamation.

The Majority Opinion, deeming that an expressive act conducted in a private relationship and space to protect an individual’s reputation constitutes constituent elements, and intends to expand the grounds for the elimination of illegality under Article 310 of the Criminal Act for the purpose of achieving harmony with the freedom of expression. However, the same applies likewise to the protection of an individual’s reputation, and is nothing more than the Gu room to maintain the doctrine of spectrumability. Even if the grounds for the elimination of illegality under Article 310 of the Criminal Act are broad, it is punished as defamation insofar as the expression’s main purpose and content are not public interest. Not only is the question how much public interest is in a private conversation in a private space, but also the demand for it is also the same as the prohibition of a private gathering on a private subject. All citizens may not be subject to criminal punishment except that the content of a private conversation is an essential act that does not enter the victim. This is to be regarded as a criminal who is not a potential or uncomfortable criminal suspect.

Although freedom of expression may be limited to a statement that may harm the public interest, it does not allow freedom of expression only for the public interest. However, the propagation potential doctrine adopted by the Majority Opinion leads to the conclusion of deeming that freedom of expression is allowed only for the public interest (in cases where the main purpose is to undermine the public interest even if the motive is additionally included therein). This doctrine may not change the outcome unless the legal doctrine on the possibility of dissemination is waived.

(j) We examine the judgment of the court below on defamation in light of the aforementioned legal principles.

1) The instant case refers to the Defendant’s husband Nonindicted 2 and the victim’s father Nonindicted 3’s relative, who stated the facts against the victim. The mere expression to a certain minority alone cannot be deemed to have existed in a situation where an unspecified number or a large number of unspecified persons could directly recognize it. Therefore, it is difficult to view that the Defendant’s speech constitutes a crime of defamation against the victim even if the Defendant speaks as stated in the facts charged.

2) The facts charged in this part of the facts charged are based on the premise that the other party’s remarks against the victim’s husband Nonindicted 2 and Nonindicted 32 can be recognized as a performance by applying the spectrum doctrine, and it was revealed that Nonindicted 3 was a relative of the victim during the trial process that the other party is a relative of the victim. As such, given that the other party’s specific status relationship with the Defendant or the victim was a genetic circumstance where performance (in the case of majority opinions, the possibility of dissemination) can be denied, there is no reasonable doubt as to the fact that the Defendant’s remarks in spite of such status relationship

However, the reasoning of the lower judgment is merely that Nonindicted 3 was in a relative relationship with the victim, but there is only a possibility that the Defendant’s speech might spread. Even if examining the reasoning and record of the lower judgment, it is difficult to view that sufficient deliberation or certification was made regarding performance. Furthermore, whether the Defendant was a large voice and whether other village users were in a relationship is not the content of the facts charged

The majority opinion finds out circumstances in which the defendant was not given an opportunity to exercise his/her right to defense, and affirms the above judgment of the court below. It is doubtful whether such circumstance conforms to the purport of the majority opinion that this legal doctrine should be applied on a limited basis.

3) Ultimately, the lower court found the Defendant guilty of this part of the facts charged on the premise that the Defendant’s speech is likely to spread, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on the public performance in the crime of defamation.

For the foregoing reasons, I oppose the Majority Opinion.

5. Concurrence with the Majority by Justice Park Sang-ok and Justice Min You-sook

A. The Dissenting Opinion argues that the Supreme Court precedents, which have applied the doctrine on the possibility of radio waves, should be entirely discarded, but it is not reasonable. In addition, the Dissenting Opinion is understood that the possibility of radio waves cannot be included in performance and that it should be seen only as “a situation in which many people can directly recognize it,” and that the specific contents of “direct recognition” asserted by the Dissenting Opinion are unclear, and thus, it is not only inappropriate as a standard for determination, and thus does not protect freedom of expression.

B. Various criticisms of the Dissenting Opinion still remains in the point of view of the initial Supreme Court’s legal doctrine on the possibility of spreading the precedents. However, the Supreme Court’s precedent accepted the above point and developed objective and specific standards on the possibility of disseminating radio waves, and became a firm legal doctrine. The Dissenting Opinion’s point out is either impossible to be a valid criticism on the current Supreme Court’s precedents, or misunderstanding the legal doctrine or purport premised on the Majority Opinion.

1) The literal meaning and legislative purport of the public performance, which the Dissenting Opinion serves as the grounds for criticism, are the contents of the Majority Opinion or the premise of the Majority Opinion. In other words, the Majority Opinion’s intent to limit the scope of recognition of defamation for the sake of harmonization of the freedom of expression with the purport of demanding public performance as a constituent element in the crime of defamation.

However, unlike the era where the crime of defamation was a means to maintain and strengthen the king, etc., the freedom of expression is relatively well guaranteed in our society as a fundamental right, while the malicious and hate contents have been spread through information and communications networks, and the situation where individual personality rights are infringed without discrimination, unlimited infringement, and damage recovery is impossible or unrefisible. Nevertheless, in our society, there is still a lack of prior and ex post facto relief measures to protect the infringed personality rights. The legislative intent of the Criminal Act, etc. of the Republic of Korea, which is subject to punishment for factual defamation, is in this point, and the people still play an important role as a norm of conduct.

The Majority Opinion’s intent to maintain the legal doctrine on the possibility of radio waves is to protect an individual’s personal rights and privacy, which are guaranteed as fundamental rights under the Constitution, taking into account the current amount of defamation and the legislative intent of defamation as seen above. It is difficult to realize a balanced balance of interests, starting from the premise that simply a factual defamation crime provides that the delivery of private conversations or information is restricted by intentionally punishing it.

2) The Dissenting Opinion argues that the doctrine of radio wave potential becomes liable depending on whether or not the other party’s radio waves are spread, but this is based on the Majority Opinion’s misapprehension of the legal doctrine of radio wave potential.

1. As seen in D., as seen in detail, the Majority Opinion does not mean a view of determining whether the other party has actually disseminated to an unspecified or many unspecified persons. If an act of causing harm to the reputation of another person by expressing a fact to an unspecified or a large number of unspecified persons is objectively and normatively determined that an act of causing harm to the reputation of another person, thereby causing general danger, the illegality of the act itself is recognized, and such act is entirely distinguishable from the responsibility of outcome.

In addition, the concerns about the remote propagation alleged by the Dissenting Opinion are determined in accordance with the objective criteria, and it is necessary to establish strict proof as to the offender’s perception and intent to allow the risk as well as the high probability of propagation. It is merely an uncontestable one of the Majority Opinion.

On the other hand, the Dissenting Opinion criticizes the Supreme Court precedents that have rendered different judgments on performance despite the same status relationship as in the case of a person who is a relative or a workplace partner. However, the Supreme Court precedents do not determine the criteria for determining the possibility of radio waves only according to the status relationship as a relative or workplace partner, but consider all the circumstances such as the circumstances of dialogue, the factual content, and the method and place of statement. It is unreasonable to criticize only one of them.

3) The Dissenting Opinion argues that the doctrine of radio wave possibility may obstruct the consistent interpretation of the crime of exhibition and screening and the crime of obscenity, etc.

However, the risk of infringing on the good sexual morals, which is the benefit of the protection of the law of the crime of displaying and screening music and the crime of public performance and the crime of defamation, which is the element of defamation, is different from the crime of defamation, which is a danger of damaging another person's reputation, as defamation is spread by the state or act of things other than horses.

Therefore, public performance in the above crimes may be interpreted differently from public performance in the crime of defamation. The same is to interpret differently the meaning and degree of each assault and intimidation in the crime of rape, robbery, and coercion.

C. It is not reasonable for the Dissenting Opinion to assert the full destruction of judicial precedents on the grounds of the principle of no punishment without law. Moreover, even according to the Dissenting Opinion, it does not mean that the objective criteria for determining performance can be set or whether performance can be clearly determined.

1) The radio wave potential doctrine is related to the interpretation of performance, and is not directly related to the principle of no punishment without the law. This is because, in the major principle of no punishment without the law, one of the interpretation principles does not directly derive, and it does not lead to the meaning that, in the literal interpretation of “patent”, an unspecified or multiple persons should be able to recognize “direct

In the case of defamation, the meaning of performance in foreign legislation that demands performance as a constituent element in the crime of defamation is interpreted in a variety of ways and changed according to the age. For example, the Supreme Court of Japan interpreted the performance of defamation as “a situation in which many people can recognize a certain and many people,” and interpreted it as “a situation in which many people can recognize a certain or a certain number of people,” and the German case interpreted it as “a situation in which public performance is not certain and many people can recognize it.” Our academic community has various opinions about the meaning of performance.

As can be seen, the interpretation of the concept of “non-specific or large number of persons” may vary from the perspective of public performance, and the meaning of public performance cannot be premised on the limitation of literal interpretation as the Dissenting Opinion.

2) Although it is not clear that “the state of direct recognition” alleged by the Dissenting Opinion is “the state of direct recognition”, it is understood that at the time of the act, an unspecified or multiple persons demand to exist in a physical space at the same time, or are premised on face-to

However, as seen in the Majority Opinion, the transmission of intent through an information and communications network is a distribution process in which information is intangible, reproductive, and is easy to transmit it with the inherent nature of non-faced nature, and where a statement of a minority can be evaluated in itself as an unspecified or many people. In light of such characteristics, there is also a view that the academic circles interpret differently the meaning of a performance in the case of defamation via an information and communications network, or view that public performance in itself is satisfied. In the case of defamation by publication, etc. (Article 309 of the Criminal Act), it is the same context where publication, etc. does not demand a public performance in the elements of a crime, depending on the nature and characteristics in which publication, etc. plans the dissemination of an unspecified or many people.

The problem of the Dissenting Opinion is that, by necessarily requiring “a face-to-face face-to-face in physical space” through the requirement of the statement’s “directness,” the extension of processing of defamation caused by a non-large area in the virtual space of information and communications network and the dissemination of defamation should not be properly regulated.

For example, a worker sent e-mail or text message containing sensitive contents as to an individual's personal history to one workplace employee. The other party who received such message delivered it to another workplace employee, and then the same act was repeated several times, and the first radio operator could expect radio waves. If the possibility of direct recognition is demanded, in any of the above cases, it may not be punished because it does not meet the requirements for direct recognition by an unspecified or many people. However, compared with the case where the first radio operator sent e-mail or text message to many people at the same time, it is the same in that there was a general risk of infringement on the victim’s social assessment.

3) The Dissenting Opinion criticizes that, in light of the purport of the crime of defamation as a constituent element, a conversation takes place in a private relationship cannot be recognized in the case of conversation, the Supreme Court precedents recognize the public performance on the ground of the possibility of dissemination.

However, Supreme Court Decisions 68Do1569, Supreme Court Decision 85Do431, supra, mentioned in the Dissenting Opinion, are not a matter of relationship between a private relationship and an individual conversation that is naturally generated in daily life. In other words, even if a person is a relative or a work partner, it does not have a pro-friendly relationship to the extent that it does not inform the outside of the publicly known fact that the relationship with the other party in the statement is identified (e.g., a workplace partner who has no special exchange with the accused or the victim, and a person who has no contact for 10 years). There are many cases where there is a high possibility of spreading in light of the content and method of the statement, and there is a risk that the reputation of the victim might be seriously damaged. The criteria for determining performance in which the Supreme Court precedents have been accumulated are considered in consideration of the above comprehensive circumstances, and the new restriction doctrine mentioned in the Majority Opinion also developed.

Therefore, it is not reasonable to readily conclude the above cases as a mere private figure, but to regard them as being designed to punish a private fence, which is derived from an erroneous premise or misunderstanding as to the spectrum doctrine. Furthermore, considering the fact that as the development of information and communications network and human exchanges increase, the boundary between private and public relations is ambiguous or dead as a result of the increase in the in-facement of human exchanges, it is not reasonable to exclude them from the subject of punishment solely on the ground that they are private relationships.

D. As stated in the Dissenting Opinion, even if public performance is understood as being directly recognizable to an unspecified or multiple number of unspecified persons, factual cases against an individual minority do not deviate from the scope of punishment, and rather, the scope of punishment can be wide. Even if the public performance is replaced by the requirement of “direct recognition” by accepting the criticism of the Dissenting Opinion, the problem is not resolved. A significant part of the criticism of the Dissenting Opinion is merely derived from the point that Article 307 of the Criminal Act provides punishment for defamation, and it cannot be resolved by only controlling the scope of the other party’s speech. The Majority Opinion presented a limited legal doctrine by considering all aspects of the factual act and its content in a direct manner, and actively recognizing the grounds for excluding illegality of Article 310 of the Criminal Act.

1) According to the Dissenting Opinion, there seems to be a big structural difference with the Majority Opinion, but there is no particular difference in applying the case to the actual case. For example, in a case where a statement of fact is made to a minority who is not closely related to a speaker and a private person, it constitutes a situation in which an unspecified person can be directly recognized, and thus, public performance should be recognized. The Majority Opinion is highly likely to recognize public performance in a case where there are circumstances to deem that there is a high possibility that public performance may be recognized (i.e., the conclusion that a crime of defamation is recognized even according to a certain opinion). On the other hand, in a case of a statement to a specific minority closely related

Ultimately, the scope of a punishment is not limited only in accordance with the Dissenting Opinion. Rather, according to the Majority Opinion, the scope of a punishment may be substantially limited on grounds of determining whether a person has performed a public performance, taking into account not only the relationship between the speaker and the other party, but also the circumstances leading up to the dialogue, the details, method, and place at the time of the act.

2) The Dissenting Opinion criticizes the Majority Opinion that the problem to be resolved by the theory of accomplice is resolved by the doctrine of propagation.

However, the crime of defamation leads to the occurrence of general risk that harms reputation. Therefore, if a statement of fact is made to an individual minority who is likely to spread to an unspecified or unspecified number of individuals, it may be completed at that stage, and since there is no room to establish an accomplice as a consequence of the termination of the crime, it may not be considered as an issue of an accomplice. In addition, if the first person cannot be recognized as an accomplice’s intentional act (the crime was resolved against a principal offender and the principal offender’s intentional act was committed), the illegality of the first person may not be punished as much as the illegality of the first person.

3) The Dissenting Opinion argues that the radio wave potential doctrine would block the recent Meo campaign, but it is irrelevant to the interpretation of performance. The regulation on the Meo campaign is merely an issue of whether a victim of a crime may be punished as a crime of defamation of the press, etc. This is a matter arising from the punishment of a crime of defamation in the Criminal Act, etc. This is an issue arising from the punishment of a crime of defamation. Based on this critical mind, the Supreme Court precedents have denied the intention or performance of defamation in the case of statements related to public procedures, such as response to damages or investigation, as seen in the Majority Opinion, and the Majority Opinion needs to recognize the grounds for illegality by extensively applying Article 310 of the Criminal Act in cases where the public interest of individuals is related to the public interest and the same affects social interest. Rather, according to the Majority Opinion, not only the case where the victim of a crime, such as Meo campaign, is informed to the minority, but also the case where the victim of a crime is notified to the majority of the public, thereby protecting the illegality of the victim of the crime.

E. Although there is an increase in the phenomenon where an individual’s reputation is widely infringed and recovery is impossible, the Majority Opinion aims to maintain the legal doctrine on the possibility of dissemination and develop the legal doctrine on the restriction through a balanced comparison of individual reputation, personal rights and privacy protection and freedom of expression in reality where there is no other alternative to protect individual’s personal rights. In addition, even in cases where a statement of true facts is made differently from a foreign country, it is not intended to maintain the legal doctrine on the possibility of spreading the scope of application of the grounds for the exclusion of illegality in order to overcome the limit of the current law which is punished for the crime of defamation.

As above, we supplement the reasoning of the Majority Opinion.

Chief Justice Kim Jong-soo (Presiding Justice)