[1] The meaning of "a serious fact" under Article 310 of the Criminal Code

[2] The meaning of "other publications" under Article 309 (1) of the Criminal Code

[3] Relationship with Articles 309(1) and 310 of the Criminal Act

[4] The meaning of "the case concerning the public interest" under Article 310 of the Criminal Code and the criteria for its determination

[1] The Criminal Code prescribes a different statutory punishment depending on whether the facts stated in Articles 307 and 309 are true or false with respect to a crime relating to honor, and stipulates that if the facts alleged in Article 310 are true and are solely related to the public interest, the punishment shall not be imposed. In this context, the term "real fact" means the fact that the important part is consistent with objective facts in light of the overall purport of the contents, and it is unreasonable to say that there is a little difference from truth or somewhat exaggerated expression in the detailed contents.

[2] In order to be deemed to constitute “other publications” under Article 309(1) of the Criminal Code, in light of the fact that the use of publications, etc. by factual means is more likely to cause infringement on the victim’s rights, such as high propagation, reliability, and possibility of long-term preservation that many people can see, in light of the nature of the use of publications, etc., and that there are grounds for the aggravated punishment, it should be deemed as printed materials with at least the appearance with the same level of utility and function as registered and published, which can be distributed and used as publications, even if they are not registered and published.

[3] "Purpose of slandering a person" under Article 309 (1) of the Criminal Code is required for the intention or purpose of harm, and it is in conflict with one another in the direction of subjective intention of the actor as well as for the purpose of public interest. Thus, in the case of public interest under Article 310 of the Criminal Code, the provision that no punishment shall be imposed does not apply to acts under Article 309 (1) of the Criminal Code that require the purpose of slandering a person, but is limited to acts under Article 307 (1) of the Criminal Code that do not require such purpose, and in the case where the facts alleged in the public interest are related to public interest, it is reasonable to view that the purpose of slandering a person is denied unless there are any special circumstances. Therefore, the establishment of the crime of defamation under Article 307 (1) of the Criminal Code can be an issue of whether the crime of defamation under Article 310 of

[4] Article 310 of the Criminal Code provides that "the time when the publicly alleged facts relate to the public interest" refers to the public interest when objectively seen, and an actor is also required to explicitly state such facts for the public interest. It includes not only the public interest of the State, society, and other general public, but also the interest and interest of a specific social group or a group of its members. Whether the publicly alleged facts relate to the public interest or not shall be determined by comparing and examining the contents and nature of the publicly alleged facts, the scope of the counter-party to whom the relevant facts were publicly announced, the method of expression, etc., and the degree of infringement of reputation that may be damaged or damaged by the expression. If the principal motive or purpose of the actor is incidental for the public interest, the application of Article 310 of the Criminal Code shall not be excluded even if the principal motive or motive of the actor is spread.

[1] Articles 307, 309, and 310 of the Criminal Act / [2] Article 309 (1) of the Criminal Act / [3] Articles 309 (1) and 310 of the Criminal Act / [4] Article 310 of the Criminal Act

[2] Supreme Court Decisions 85Do1143 delivered on March 25, 1986 (Gong1986, 729) 97Do13 delivered on August 26, 1997 (Gong197Ha, 2980) / [3] Supreme Court Decisions 4293Do823 delivered on October 26, 1960 (No. 18-2, 53 delivered on July 21, 197), 70Do1269 delivered on July 29, 197 (No. 198-4, 599), 70Do1269 delivered on July 21, 197 (No. 198-2, 53), 84Do1547 delivered on September 11, 198 (No. 1984, Dec. 39, 196)

Defendant

Prosecutor

Attorney Kang Jong-ok

Seoul District Court Decision 96No6586 delivered on December 24, 1996

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The Criminal Act provides that the statutory punishment is different depending on whether the facts stated in Articles 307 and 309 are true or false, and the punishment is not imposed when the facts solely relate to the public interest as true facts in Article 310 with respect to the crimes related to honor. Here, the true facts here are the meaning that the important part is consistent with objective facts in light of the overall purport of the contents, and there is little difference from truth or somewhat exaggerated expressions in the detailed contents.

According to the record, the facts revealed in the printed matter of this case distributed to the union members while competing with the victim who was a competing candidate at the election of the president of the private taxi transport business association (hereinafter the "association of this case") around June 15, 1995, which was conducted by the defendant during the election campaign. The facts revealed in the printed matter of this case, such as "the fact that the former president of the association of this case was non-Confidence and detained due to occupational corruption", "the victim brought a lawsuit against the association", "the fact that the victim had maintained pro-friendly relations, such as belongs to the same friendship with the former president," "the defendant was proposed to disclose the joint oil," "the fact that the victim was not able to respond to the election day", "the fact that the victim was imprised against the election day", and the context of the election campaign, such as "the main railway station", "wore", "wore", "act that misleads the union members" and "act that misleads the union members."

The judgment of the court below to the same purport is just and it is not erroneous in the misapprehension of legal principles as to the determination of the truth of a timely statement in the crime of defamation. The ground of appeal on this point is without merit.

2. As to the grounds of appeal Nos. 2 and 3

(1) Article 309(1) of the Criminal Act provides that "a person who commits a crime under Article 307(1) by means of newspaper, magazine, radio, or other publication for the purpose of slandering another person shall be punished more than defamation under Article 307(1). In order to constitute the elements of defamation under Article 309(1) of the Criminal Act, subjective requirements must be met for the purpose of defamation and objective requirements, and if one of them is decided by means of publication, the above crime shall not be established. In order to constitute "other publication" under Article 309(1) of the Criminal Act, if it is used in a factual manner, the degree of infringement of legal interests against victims, such as high propagation, reliability, and possibility of long-term preservation, is greater than that of Article 307(1) of the Criminal Act. In light of the fact that there are reasons for punishment, the purpose of Article 309(1) of the Criminal Act should be deemed as 90 of the Criminal Act’s penal purpose, which does not require more subjectively 97.

In addition, Article 310 of the Criminal Act provides that "when the publicly alleged facts relate to the public interest" and "when the publicly alleged facts relate to the public interest," it should be objectively stated by an actor for the public interest. It includes not only the public interest of the State, society, and other general public, but also the interest and interest of a specific social group or a group of its members (see Supreme Court Decision 97Do88 delivered on April 11, 1997). Whether the publicly alleged facts relate to the public interest of the expression itself, such as the contents and nature of the publicly alleged facts, the scope of the counter-party whose public announcement was made, the method of expression, etc., and at the same time, the degree of infringement of reputation that may be damaged or damaged by the expression should be compared and decided by comparing it with the degree of infringement of reputation that may be damaged or damaged by the expression. If the principal motive or purpose of the actor is for the public interest, even if the other private interest purpose or motive is included, it may not be excluded from the application of Article 310 of the Criminal Act.

(2) According to the records, the printed materials in this case distributed by the defendant are merely printed on the paper of the piece of paper that cannot be seen as having indicated a certain title (title) with a width of 25cm and 35cm in length. In light of the appearance or form of the printed materials in this case, it is difficult to view that the printed materials in this case are publications that can be distributed and used actually with high propagation, reliability, possibility of preservation, etc. of the same degree as the registered publications in this case.

In addition, according to the facts and records established by the court below, the association of this case is established for the purpose of promoting the public interest of taxi transport business with its members as a private taxi transport business operator in the Seoul Special Metropolitan City Council under the former Automobile Transport Business Act (wholly amended on December 13, 1997), and the number of its members is about 40,000 members as a corporation established for the purpose of common welfare and friendship among its members. The president of the association of this case, who has overall control over the affairs of the association of this case, can produce and distribute printed materials that criticize the candidates in the event that the association members are elected by direct election and election campaign, and there is a factual basis in accordance with the union election management regulations. In the 12th chief election of the association of this case, the association of this case was a major issue such as the purpose and character of the association of this case, the status of the president, the process of election method, the process of preparing the printed materials, the circumstances and the distribution of printed materials to the candidates' members of the association, and the subjective reasons for the defendant's interests in the whole association of the public interest.

(3) Ultimately, the facts charged of this case are not just false facts, but also it is difficult to see that the facts charged of this case are "other publications", and it is difficult to see that the defendant's victim's victim's victim's victim's victim's victim's victim's victim's complaint is not a crime of defamation as provided in Article 309 (2) or (1) of the Criminal Act. Furthermore, even if the facts charged of this case constitute defamation as provided in Article 307 (1) of the Criminal Act, it is reasonable to see that the illegality should be avoided by Article 310 of the Criminal Act

However, the court below held that the facts charged in this case constitute "other publications" and the defendant's act of defamation constitutes a crime of defamation in a factual publication as stipulated in Article 309 (1) of the Criminal Act, and held that the defendant's act of defamation is not unlawful in light of social norms by drawing up the special legal principles of the election of the President, National Assembly members, election of National Assembly members, local council members and heads of local governments under the proviso of Article 251 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act, which apply to the election of the President, National Assembly members, the election of local council members, and the heads of local governments, and thus, there is no reasonableness to the extent permitted by social norms. The judgment of the court below's above procedure of determination cannot be seen as just, but the conclusion that the defendant's act of

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Yong-hun (Presiding Justice)