[1] The legal interest in the crime of insult (i.e., insult) and the meaning of “defluence” as referred to in the crime of insult

[2] In a case where the Defendant, who is in charge of labor union office position as the dismissed party Gap corporation, was indicted on charges of insulting Eul's name on several occasions, such as "I ○○, ○○○, ○○○, with a large volume of 140 persons who are more than the Defendant, who is the vice president of the company Gap, and the vice president of the company Eul who is more than the Defendant," and "I ○○, ○○, ○, ○○, and ○○?, ○○, ○○, ? ? ? ? ?], as the vice president of the company Gap, the case holding that the Defendant's above remarks do not constitute an insulting speech that could objectively undermine the other party, but do not objectively undermine the social evaluation of the personal value of Eul

[1] The offense of insult under Article 311 of the Criminal Act is an offense, the legal interest of which is protected by the law, which means a social evaluation of a person’s value, and refers to the expression of an abstract judgment or sacrific sentiment, which is likely to undermine a person’s social evaluation without mentioning a fact. Therefore, if a certain expression is not likely to undermine a person’s social evaluation of the other party’s personal value, it shall not be deemed as an element of the offense of insult even if it was expressed in a somewhat unusual manner.

[2] In a case where the Defendant, who is in charge of labor union affairs as the dismissed Gap corporation, was indicted on several occasions of insulting Eul, such as “I ○○○, ○○○, who is a vice president of the company A, with a large sound of 140 persons working for the labor and management,” and “I am free from the name of ○○○, ○○, ○○? ? ? I am free from the name? I am free from the labor and management rules, and during this process, conflicts between the Defendant and the employer such as confirmation of unfair labor practices on the part of the employer have occurred, and in view of the fact that the Defendant and the executive members of the labor union were 15 years old compared to the Defendant, the case holding that the lower court determined that “I am free from the employer’s right to use the labor and management, but it was difficult to objectively see that I am free from the employer’s right to use the labor and management, and that I am free from the employer’s right to use the labor and management.

[1] Article 311 of the Criminal Code / [2] Article 311 of the Criminal Code, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 87Do739 Decided May 12, 1987 (Gong1987, 1018) Supreme Court Decision 2015Do229 Decided September 10, 2015 (Gong2015Ha, 1571) Supreme Court Decision 2015Do622 Decided December 24, 2015)

Defendant 1 and one other

Defendants

Attorney Kim Sang-hoon et al.

Daejeon District Court Decision 2016No2191 Decided January 26, 2017

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division. Defendant 1’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

A. The offense of insult under Article 311 of the Criminal Act is an offense, the legal interest of which is protected by the law, which means a social evaluation of a person’s value, and refers to the expression of an abstract judgment or sacrific sentiment that may undermine a person’s social evaluation without a statement of fact. Therefore, if a certain expression is not likely to undermine a person’s social evaluation of the other party’s personal value, it cannot be deemed as an element of the offense of insult even if it was expressed in a somewhat unusual manner (see, e.g., Supreme Court Decisions 87Do739, May 12, 1987; 2015Do229, Sept. 10, 2015).

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) Defendant 2, as the dismissal status of Nonindicted Co. 1 Company (hereinafter “Nonindicted Co. 1”), was a person engaged in labor-management activities in the office of Nonindicted Co. 1 in the △△ branch office of the △△ branch office (hereinafter “metallic labor-management”), and Nonindicted Co. 2, as the vice president of Nonindicted Co. 1, concurrently held the factory of △△△ branch office.

2) From 2011 to 201, Nonindicted Co. 1 suffered serious conflict between labor and management. In such a process, it was confirmed that Nonindicted Co. 1’s employer took part in the establishment of multiple labor unions, such as nullifying existing labor union and participating in the establishment of multiple labor unions, conflicts between labor and management have occurred.

3) From October 7, 2014, Nonindicted 2 and the labor-management negotiations were conducted with the negotiating members on the part of the employer, and Defendant 1 took a bath to Nonindicted 2 and went through negotiations. Both labor and management continued to hold negotiations on October 14, 2014, but Nonindicted 2 was able to proceed with negotiations on the part of the Defendants, who disclosed the position that Nonindicted 2 may not be reduplicated or insulting speech for himself, but the Defendants were able to take part in negotiations on the part of himself.

4) On November 21, 2014, 40 managers, including Nonindicted 2, executives, and chiefs, including Nonindicted 2, executive officers, were gathered to remove a non-approval notice installed by metal labor unions as the exercise of the right to manage facilities, and 10 members, including 100 members, belonging to metal labor unions, were gathered to restrain the removal.

5) Defendant 2 said that Defendant 2’s act of removing a notice on the part of the employer interfered with and interference with the activities of an association in metal labor-management, and caused a large of 140 persons related to labor and management, Defendant 2 said that Defendant 2 made it several times to the victim, who is 15 years of age older than Defendant 2, to whom the 15-year-old person was extended, for a large volume of sound, “ whether ○○, ○○, and ○○, ○○, and ○○, ○○, ○○, and ○○?”

C. In light of the above legal principles, Defendant 2’s relation with Defendant 2 and Nonindicted 2, the background leading up to such a statement, the meaning and overall context of the statement, the place where the statement was made and the circumstances before and after the statement, which were acknowledged based on the record, do not constitute an insulting speech that may objectively undermine the social evaluation of the personal value of Nonindicted 2, even though the said statement was an inevitable and out of the courtesy, it is difficult to view that it constitutes an insulting speech that may objectively undermine the social evaluation of the personal value of Nonindicted 2.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court concluded that Defendant 2’s above remarks constituted insult under Article 311 of the Criminal Act. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of insult under the Criminal Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

In addition, the above reversal part against Defendant 2 and the remaining conviction part of Defendant 2 in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, one punishment should be imposed. Therefore, the part against Defendant 2 should be reversed in its entirety.

2. As to Defendant 1’s ground of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the ground that the judgment of the court below had affected the conclusion of the judgment. Accordingly, in this case where a fine was imposed against Defendant 1, the court below’s failure to conduct an incomplete hearing and the allegation that there is a violation of the rules of evidence is a substantial dispute over the selection of evidence and the finding of facts

3. Conclusion

Without further proceeding to decide on the remaining grounds of appeal, the part on Defendant 2 among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)