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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds of appeal (legal scenarios) is that the Defendant expressed an insulting expression of a personal character, not an artistic creation of the complainant, via the highly strong Internet, which is not an artistic creation of the complainant; that the writing written and posted by the Defendant cannot be seen as either in accordance with the purpose of artistic expression or in an appropriate manner; that is, when compared with the assessment of the Defendant’s artistic creation to be achieved and the personal legal interests and interests of the complainant infringed thereby, the infringement interest is greater, and thus, the Defendant’s act in this case is contrary to the social rules and thus, its illegality is not denied.
However, since the court below acquitted the defendant, there is an error of law by misunderstanding the legal principles as to the legitimate act.
2. Determination
A. The offense of insult as referred to in the crime of insult does not state a fact, and expresses an abstract judgment or a sacrific sentiment that could undermine the people’s social evaluation, and even in the case of containing such insulting expressions, in light of the motive, circumstance, and background behind posting the article, the overall purport of the article, specific method of expression, the logical and objective objective of the presumed fact, the proportion of the presumed fact in the whole article as well as its overall contents, and the relation between the whole contents, etc., it shall be deemed that the article is unlawful under Article 20 of the Criminal Act, based on the premise that the article is objectively reasonable. If it is merely a partial insulting expression in the process of emphasizing its judgment and opinion reasonable, it is not contrary to social rules, barring any other special circumstances, and it shall be deemed that the illegality is excluded under Article 20 of the Criminal Act.
B. (Supreme Court Decision 2006Do4408 Decided April 24, 2008).