[1] The person who bears the burden of proving “false perceptions” in the crime of defamation via an information and communications network by stating false facts under Article 70(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (=the examination) and the standard of determining whether

[2] The case holding that the judgment below convicting the defendant of violation of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. that caused Gap's institute and its representative's defamation by pointing out false facts on the Internet bulletin was erroneous in the misapprehension of legal principles as to the burden of proof or in the

[3] The criteria for determining whether there is "the purpose of slandering a person" under Article 70 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the relationship with "the public interest"

[1] The facts constituting the elements of a crime charged in a criminal trial are the prosecutor’s burden of proof, whether it is a subjective element or an objective element. Thus, in a case prosecuted for defamation through an information and communications network’s false statement of false facts under Article 70(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008), a prosecutor must prove that the alleged facts are not consistent with the objective truth, and that the Defendant knew that the alleged facts were false and publicly alleged. However, in determining whether to bear the above burden of proof, a prosecutor who is the active party must prove the absence of a specific act at a specific period and at a specific place, as well as a reasonable deliberation without a reasonable doubt. However, it is difficult for the prosecutor to prove the absence of a fact that has not been embodied in a specific period and at a specific place, while it is difficult for the prosecutor to assert and prove such facts more easily than in light of social norms.

[2] As to the facts charged of violation of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008), where the Defendant, by stating false facts on the Internet bulletin board, damaged the honor of Gap's U.S. and its representative Eul, the court held that the court below erred in the misapprehension of legal principles as to the burden of proof or in the violation of the rules of evidence, on the ground that the evidence cited as the grounds of conviction alone is insufficient to deem that the above facts were false and that the Defendant was not proven to the extent that there is no reasonable doubt that such facts were false, and that the Defendant did not present specific and objective materials to prove that they were true, and that the Defendant was guilty,

[3] "Purpose of slandering a person" under Article 70 (1) and (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008) requires an intention or purpose of deception. The issue of whether a person is intended to defame a person is determined by considering all the circumstances about the expression itself, such as the content and nature of the relevant facts, the scope of the other party to whom the relevant fact was published, the method of expression, etc. At the same time, the degree of infringement of honor that may be damaged or damaged by the expression should be compared and considered. Since the public interest is contrary to the subjective intention of the actor, the purpose of slandering a person’s public interest is denied, barring any special circumstance, if the alleged facts are related to the public interest, and it includes a wide range of interests of the State, society, and many general people, and it is difficult to deem that there is any motive or purpose of slandering a person’s motive or purpose incidental to the public interest.

[1] Article 70(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 9119, Jun. 13, 2008); Article 308 of the Criminal Procedure Act / [2] Article 70(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 9119, Jun. 13, 2008); Article 308 of the Criminal Procedure Act / [3] Article 70(1) and (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 9119, Jun. 13, 2008)

[1] [3] Supreme Court Decision 2004Do207 Decided April 14, 2006 / [1] Supreme Court Decision 99Do5190 Decided February 26, 2004 (Gong2005Ha, 1462), Supreme Court Decision 2008Do1421 Decided June 12, 2008, Supreme Court Decision 2006Do7915 Decided November 13, 2008, Supreme Court Decision 2007Do5836 Decided November 30, 2009, Supreme Court Decision 2009Do4949 Decided July 26, 2005 (Gong2058 decided Oct. 28, 2008) / [305] Supreme Court Decision 2008Do794836 Decided 2085 decided Oct. 28, 2010]

Defendant

Defendant

Attorney Ha Jae-chul et al.

Suwon District Court Decision 2009No1510 decided October 22, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of the supplemental appellate brief not timely filed).

1. As to the misapprehension of legal principle as to the burden of proof of false facts

The court below, after compiling the adopted evidence, found facts as stated in its reasoning, and determined that as to defamation through the information and communications network under Article 70 (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008; hereinafter “former Act”), the defendant had been urged to deposit ** * * * * Professor Professor after he had been urged to deposit her money from money, since the working-level officers and employees had changed to the extent that 10% between 2 years of operation and 2 years of big interest of parents, and the representative of the U.S. Research Institute did not look at the U.S. or Canada, and it did not present specific and objective data that the defendant had presented that the defendant had no possibility of escape from the Internet."

However, it is difficult to accept such judgment of the court below for the following reasons.

Since the facts constituting the elements of a crime prosecuted in a criminal trial are subject to the prosecutor’s burden of proof, whether it is a subjective requirement or an objective requirement, the prosecutor must prove that there was a disclosure of the fact that the person’s social evaluation was undermined in the case prosecuted for defamation through an information and communications network via a false statement of false facts under Article 70(2) of the former Act, and that the alleged facts were not consistent with the objective truth, and that the Defendant knew that the alleged facts were false (see, e.g., Supreme Court Decisions 2008Do1421, Jun. 12, 2008; 2007Do5836, Jan. 30, 2009).

However, in determining whether or not the above burden of proof has been fulfilled, a prosecutor who is the active party shall prove not only the existence of a fact actively but also the absence of a specific act at a specified period and place without reasonable doubt. However, it is difficult for a prosecutor to prove the absence of a fact that has not been specified in a specified period and place in social norms, while it is difficult to prove and prove the existence of a fact, it is more easy to prove and prove the existence of a fact. Therefore, such circumstance should be considered in determining whether a prosecutor fulfilled the burden of proof (see Supreme Court Decision 2006Do7915, Nov. 13, 2008, etc.).

In light of the above legal principles and the records, since it is reasonable to view the facts stated in paragraph (1) of the facts alleged in the facts charged by the defendant as a specific act in a specific period and at a specific place, the prosecutor bears the burden of proving that each of the above facts was false and that the defendant was aware of such falsity. However, the evidence cited by the court below as the ground for conviction, namely, the evidence, “the witness Non-Indicted 1 and 2’s statement in each court’s protocol, and the screen run-up on the screen” of the facts alleged in paragraph (1) of the facts alleged by the defendant is false and it is difficult to view that there is no other evidence to prove that there is no reasonable doubt that the defendant

Nevertheless, the lower court determined that each of the above facts was false on the grounds that the Defendant failed to present specific and objective materials to substantiate the fact that each of the facts alleged in paragraph (1) of the facts charged was true, and that the Defendant was aware of such facts were false, and found guilty of defamation through the information and communications network by making a false statement of false facts in paragraph (1) of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the burden of proof as to the crime of defamation, or by misapprehending the rules

2. As to the remaining grounds of appeal

"Purpose of slandering a person" under Article 70 (1) and (2) of the former Act requires the intention or purpose of a harm. The issue of whether a person is intended to defame a person is determined by considering the contents and nature of the relevant publicly alleged fact, the scope of the other party to whom the relevant fact was published, the method of expression, etc., and considering the degree of infringement of honor that may be damaged or damaged by the expression itself. At the same time, considering the comparison and consideration of the degree of infringement of reputation that is likely to be damaged or damaged by the expression, it is in conflict with the subjective intention of the actor. Thus, in a case where the publicly alleged fact concerns public interest, unless there are any special circumstances, it is reasonable to deem that the purpose of slandering the public interest is denied. It includes not only the matter concerning the interests of the State, society, and other general public, but also the matter concerning the interest and interest of a specific social group or its entire members. If the main motive or purpose of the actor is for the public interest, it is difficult to deem that there is a purpose of slandering a person’s other private interest or motive (see, May 28, 28, 2008.).

In light of the above legal principles and the records, the court below acknowledged facts as stated in its decision after compiling the adopted evidence, and found that the defendant posted each article listed in paragraphs (1) and (2) of the facts charged on the defendant's personal shoulder, etc. for the purpose of slandering ○○○○ U.S. Research Institute and the representative of the above U.S. Research Institute and Nonindicted 3, and Nonindicted 4 sent each article on the defendant's personal shoulder, etc., and it is not against Canada again due to the failure of the U.S. Research Institute and study in Canada, it is just to determine that the defendant was aware that the above article was false, and there is no violation of the rules

3. Conclusion

Therefore, the part of the judgment of the court below regarding Paragraph (1) of the facts charged shall be reversed, and since the court below rendered a single punishment by deeming that this part of the judgment of the court below is one of the concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining facts of crime, it shall be reversed in its entirety, and the case shall be remanded to the court

Justices Lee In-bok (Presiding Justice)