The meaning and standard of determining “public performance” among the elements of the crime of defamation / Where the public performance of defamation is recognized on the grounds of the possibility of dissemination, the content and method of determining the existence of intent as a subjective element.

Article 307 of the Criminal Act

Supreme Court Decision 99Do5622 Decided May 16, 200 (Gong2000Ha, 1468) Supreme Court Decision 2004Do340 Decided April 9, 2004 (Gong2004Sang, 850) Supreme Court Decision 2010Do7497 Decided September 8, 201 (Gong201Ha, 2167), Supreme Court Decision 2018Do4200 Decided June 15, 2018 (Gong2018Ha, 1347)

Defendant

Defendant

Law Firm Shin, Attorneys Park Jong-il et al.

Chuncheon District Court Decision 2015No988 Decided December 15, 2016

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court.

The grounds of appeal are examined.

1. The public performance, which is the constituent element of the crime of defamation, refers to a state in which an unspecified or multiple number of people can be recognized. Although a public performance is not necessarily required to be recognized at the same time, if there is a possibility that a single person might be disseminated to an unspecified or many unspecified persons, it satisfies the requirements of public performance. However, if there is no possibility of spreading any other matter, the public performance does not constitute a public performance for a specific person (see, e.g., Supreme Court Decisions 99Do5622, May 16, 200; 2010Do7497, Sept. 8, 201). Whether there is a possibility of dissemination ought to be determined objectively in a specific case by taking into account various circumstances, such as the process and situation at the time of speaking, the offender’s intent and attitude at the time of speaking, the other party’s attitude, the relationship between the offender, the victim, and the other party, the content of speaking, and the other party’s ordinary tendency.

In a case where the public performance of defamation is acknowledged on the ground of the possibility of spreading, dolusent intent is required as a subjective element of the constituent elements of the crime, and thus, there is a perception of the possibility of spreading, as well as an intent to deliberate on the possibility of permitting such danger. Whether an actor permitted the possibility of spreading should be determined based on the general public’s specific circumstances, such as the form and situation of the act externally revealed, etc., in light of how to assess the possibility of spreading, the psychological state from the standpoint of the actor ought to be ratified (see, e.g., Supreme Court Decisions 2004Do340, Apr. 9, 2004; 2018Do4200, Jun. 15, 2018).

2. The lower court found the Defendant’s act likely to spread, and found the Defendant guilty, on the grounds that the Defendant stated false facts to Nonindicted 1 and Nonindicted 2, Nonindicted 1 and Nonindicted 2 did not have any friendship relationship with the Defendant or the victim Nonindicted 3 and Nonindicted 4, and did not take any duty of confidentiality.

3. A. The record reveals the following facts.

(1) The victim Nonindicted 3 is the wife of the deceased Nonindicted 5 (hereinafter “the deceased”), and the victim Nonindicted 4 is the wife of the deceased. The Defendant is the husband of Nonindicted 6. Nonindicted 7 was the creditor of the deceased’s loan to Nonindicted 1 and Nonindicted 2, and the deceased was in charge of managing the property by collecting Nonindicted 7’s claim before the death. After the death of the deceased, the Defendant played its role. However, upon the death of the deceased, there was a dispute as to whether the legitimate right holder of the property managed by the deceased is Nonindicted 7 or the deceased’s heir.

(2) In the course of Nonindicted 1 and Nonindicted 2’s call or call, the Defendant argued that Nonindicted 7 was a legitimate right holder, not the victims, and made a statement in relation to the relationship between the deceased and Nonindicted 7, and made the same statement as the facts charged that Nonindicted 3 and Nonindicted 4 did not look at the deceased, or that Nonindicted 3 and Nonindicted 4 did not look at the deceased.

(3) Nonindicted 1 and Nonindicted 2, other than the victims, did not deliver the Defendant’s speech to any other person. The victims became aware of the fact that the Defendant made the said speech while communicating with Nonindicted 1 and Nonindicted 2.

B. In light of the above-mentioned facts and the following facts, it is difficult to deem that the Defendant’s speech was likely to spread or that there was an intention to allow the Defendant’s awareness of the possibility of spreading radio waves and the risks thereof, in light of the following circumstances, such as the background and contents of the Defendant’s statement, the situation at the time of the statement, and the relationship between the Defendant

(1) The Defendant made a statement with Nonindicted 1 and Nonindicted 2, and the content thereof is very private that it is not good between the victims and the deceased. However, upon the death of the deceased, Nonindicted 1 and Nonindicted 2 were not known to the Defendant or the victims. However, there was a dispute over whether the obligee of the claim against Nonindicted 1 and Nonindicted 2 managed by the deceased was Nonindicted 7 or the victims who inherited the deceased. In such a situation, there seems to be no reason to inform other persons of the contents of the Defendant’s statement that Nonindicted 1 and Nonindicted 2 came to know.

(2) When Nonindicted 7 filed a civil suit against Nonindicted 2 and victims, Nonindicted 2 submitted a written answer stating the Defendant’s statement. However, Nonindicted 7 asserted that he was in a de facto marital relationship with the deceased and asserted that he was in a de facto marital relationship with the deceased, and that he was dissatisfied with the subject of reversion of the victims and the claims, and thus, there seems to be no reason to inform other persons of the content thereof.

C. Nevertheless, the lower court found the Defendant guilty of the instant charges by recognizing the public performance of defamation. In so determining, the lower court erred by misapprehending the legal doctrine on the public performance of defamation, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)