[1] The scope of a trial by the court of final appeal and the scope of grounds for appeal

[2] The degree of "statement of fact" to constitute defamation under Article 61 (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[3] Whether the public nature of defamation under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. can be recognized in a case where a publicly alleged fact is already dealt with in a part of society (affirmative)

[4] The method of determining "the purpose of slandering people" under Article 61 (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[5] The case holding that the crime of defamation under Article 61 (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. is established where a certain female artist added comments to the same purport under the circumstances where a certain female artist raised a baby of punishment or boomed as if he received the fees

[1] Articles 383 and 384 of the Criminal Procedure Act / [2] Article 61(2) (see current Article 70(2)) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8778, Dec. 21, 2007); Article 307(2) of the Criminal Act / [3] Article 61(2) (see current Article 70(2)) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8778, Dec. 21, 2007) / [4] Article 61(2) (see current Article 70(2))) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8778, Dec. 21, 2007); Article 61(2) (5) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Supreme Court Decision 2006Do2104 Decided June 30, 2006, Supreme Court Decision 2006Do8690 Decided March 15, 2007 / [2] Supreme Court Decision 2000Da37647 Decided January 24, 2003 (Gong2003Sang, 688) Supreme Court Decision 2006Do648 Decided August 25, 2006 / [3] Supreme Court Decision 2003Do4934 Decided June 25, 2004 (Gong2007Do8155 Decided February 14, 2008) / [4] Supreme Court Decision 2006Do6486 Decided August 25, 2006

Defendant

Defendant

Seoul Central District Court Decision 2008No190 Decided March 11, 2008

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the ground of appeal that does not indicate the facts

The Defendant asserts that the comments he posted in the article column for the victim after the Internet evaded site media (www.media.dirum.net) do not constitute a case in which specific facts are stated because they merely do not constitute a matter of doubt about the novel regardless of the extent.

However, since the court of final appeal is a follow-up trial on the judgment of the appellate court, matters which are not subject to the judgment of the appellate court are not different from the scope of the judgment of the court of final appeal. Thus, the defendant cannot be considered as the grounds for final appeal on the grounds other than those which the defendant did not assert as the grounds for final appeal in the appellate court or which the appellate court is subject to the judgment ex officio (see, e.g., Supreme Court Decisions 2006Do2104, Jun. 30, 2006; 2007Do5970, Nov. 15, 2007). According to the records, it is obvious that the defendant did not appeal against the judgment of the first instance, and it is obvious that the judgment of the court below did not consider the above grounds for final appeal as the grounds for final appeal ex officio. Thus, the defendant's argument that the

Furthermore, even if ex officio examination is conducted, a statement of fact in the crime of defamation using an information and communications network as provided by Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007; hereinafter “former Act”) is not necessarily limited to cases where a statement of fact is directly expressed, but it indicates the existence of such fact in light of the overall purport of the expression, even if it is indirectly or indirectly expressed, it is sufficiently sufficient that there is a possibility that a specific person’s social value or evaluation may be infringed (see Supreme Court Decisions 91Do420, May 14, 1991; 200Da37647, Jan. 24, 2003; hereinafter “the former Act”). According to the reasoning of the judgment of the court of first instance cited by the court below, the defendant’s act of not giving a notice of the victim’s evasion of the Internet site and its purport can not be seen as if it did not constitute an expression?

2. As to the ground of appeal that no performance exists

Although the Defendant asserts that the content posted by himself does not constitute a performance in the content dealt with in all broadcasts, newspapers, magazines, etc. dealing with entertainment information, it is evident in the record that the Defendant appealed against the judgment of the court of first instance and the Defendant did not consider such grounds for appeal as the grounds for appeal. The judgment of the court below is subject to ex officio determination as to the above grounds for appeal, and therefore, it cannot be a legitimate ground for appeal in light of the aforementioned legal principles.

Furthermore, even if ex officio examination is conducted, performance refers to the state in which many and unspecified users can easily recognize the content of performance in the violation of Article 61 (2) of the former Act (see Supreme Court Decisions 2003Do4934, Jun. 25, 2004; 2007Do8155, Feb. 14, 2008; 2007Do8155, Feb. 14, 2008). Even if the alleged facts are already dealt with in a part of society, it constitutes defamation if a person commits an act that may undermine the social evaluation of the person by disclosing the facts (see Supreme Court Decision 93Do3535, Apr. 12, 1994). According to the reasoning of the lower judgment and the evidence of the first instance court cited by the lower court, the statement posted by the Defendant was easily identified by many and unspecified users using the relevant Internet site. Thus, the Defendant’s act of posting comments on the Internet site as above can not be accepted as a performance of the Defendant.

3. As to the ground of appeal that there was no purpose or intention of slandering

Article 61 (2) of the former Act provides that "the purpose of slandering a person" means the purpose or intent of defamation. Whether a person is a purpose of slandering a person is to be determined by comparing and considering the contents and nature of the relevant publicly alleged fact, the scope of the other party to whom the relevant fact was published, and the degree of infringement of reputation that may be damaged or damaged by such expression, etc. (see Supreme Court Decisions 2003Do6036, Dec. 26, 2003; 2006Do648, Aug. 25, 2006; 2006Do648, etc.). Meanwhile, as long as the defendant denies a criminal, the court below did not have any error of law by proving indirect facts that have a substantial relation with the intention of deception in light of the nature of things, and in light of the legal principles as seen above, the court below’s determination that there was no serious violation of the law as to defamation or connection with the Internet, etc. 200Do297, Feb. 20, 2001).

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)