[1] The meaning and method of determining “the case concerning the public interest in the future” under Article 310 of the Criminal Code

[2] In a case where the president of the Incorporated Foundation Gap filed a complaint against embezzlement of the property of the Incorporated Foundation Gap during his/her former president Eul during his/her term of office, but was convicted of false accusation, and the Defendants were indicted for defamation by pointing out the facts found guilty, the case holding that the Defendants committed an act of undermining the social evaluation by indicating the criminal records of Gap, but there is sufficient room to view that the alleged facts correspond to the truth and are only for the public interest, and that the illegality is justified

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

[1] Supreme Court Decision 97Do158 delivered on October 9, 1998 (Gong1998Ha, 2715), Supreme Court Decision 2004Do3912 Delivered on October 15, 2004 (Gong2004Ha, 1896), Supreme Court Decision 2005Do2049 Delivered on May 25, 2006 (Gong2006Ha, 1205)

Defendant 1 and three others

Defendants

Attorney Choi Min-young

Seoul Southern District Court Decision 2015No947 decided May 20, 2016

The judgment below is reversed, and the case is remanded to the Seoul Southern District Court.

The grounds of appeal are examined.

1. The term “the time when the alleged facts relate to the public interest” as stipulated in Article 310 of the Criminal Act refers to the time when the alleged facts relate to the public interest objectively, and an actor expresses the facts for the public interest subjectively. It refers to not only to the interests of the State, society, and other general public, but also to the interest and interest of a specific social group or its entire members. Whether the alleged facts relate to the public interest or not shall be determined by comparing the contents and nature of the alleged facts in question, the scope of the counter-party against which the publication of the facts in question was made, the method of expression, etc., with the consideration of all the circumstances pertaining to the expression itself, such as the contents and nature of the alleged facts in question, the degree of infringement of reputation that may be damaged or damaged by the expression in question (see Supreme Court Decision 2004Do3912, Oct. 15, 200

2. The court below rejected the Defendants’ assertion that the Defendants’ act in the facts charged of this case constitutes a public interest and thus dismissed the illegality, and upheld the judgment of the court of first instance that convicted the Defendants of each of the facts charged of this case, on the grounds that it is difficult to recognize the Defendants’ act in the facts charged of this case as an act for the public interest, in full view of the following: (a) the Defendants posted the Defendant card containing the contents of the victim’s criminal power at a public place so that they can be seen by an unspecified number of people; (b) there is a very high possibility of spreading; and (c) there was considerable social evaluation on the victims; and (d) the Defendants’ contents and method of expression; and (e) the motive and purpose

3. However, based on the reasoning of the lower judgment, the following circumstances are revealed.

A. A private person’s personal standing may serve as a material for criticism and assessment of social activities, depending on the nature of his/her social activities or the degree of influence over society. While the former president of the ○○○○ Confucian School Foundation (hereinafter “○○○○ Confucian School Foundation”) is performing his/her duties, the victim was accused of embezzlement of the property of the Incorporated Foundation during his/her term of office, but was convicted of non-guilty charges. Therefore, the victim’s criticism and assessment of his/her activities as the president of the ○○ Confucian School Foundation is a material for criticism and assessment.

B. The ○○ Confucian School Foundation is an incorporated foundation established for the management and operation of the ○○○○○○○’s properties based on the Confucian School Property Act with the aim of maintaining, educating, and conducting other educational projects, promoting the school, and contributing to the cultural development. Although the role of the Confucian School Foundation has changed in the Joseon Dynasty, it still functions as a place where the fluences on the fluence of the fluences and the fluences are maintained and distributed. In light of the constitutional ideology of the inheritance and development of traditional culture and the promotion of national culture, the fluence of the public interest is greater than a general incorporated foundation. Whether the fluence of the ○○ Confucian Confucian School Foundation’s representative is suitable for performing its duties can be deemed to fall under matters concerning the overall interest and interest of the community, including not only those involved in the operation of the Incorporated Foundation but also those who do not participate in it.

C. In this case, although the Defendants appears to have committed an act of undermining the social evaluation by stating the victim’s criminal power, the alleged principal facts are consistent with the truth with the purport that the victim was convicted of a false accusation by the Supreme Court. Therefore, if it is objectively recognized that the statement of the victim’s criminal power concerns the public interest from an objective point of view, it shall be deemed that the overall purpose of the statement is the public interest even if the objective or motive for the victim’s disclosure of the victim’s criminal power is somewhat somewhat vague.

D. Even though the Defendants did not merely state the victim’s criminal power in a timely manner, but rather used the expression expressing the victim’s negative assessment, the Defendants do not seem to have expressed their opinions that it is appropriate for the victim to retire from the president in the process of assembly and demonstration. Barring any circumstances to deem that the method of expression is too malicious, regardless of whether the Defendants’ assertion can be accepted or not, the Defendants’ exercise their fundamental rights can be deemed to have lost its reasonableness beyond the limits inherent in the freedom of speech and the freedom of assembly and demonstration.

4. Examining the aforementioned legal principles and all the circumstances acknowledged as above, there is sufficient room to deem the illegality of the Defendants’ act of expressing facts against the victim solely for the public interest. Nevertheless, the lower court erred by misapprehending the legal doctrine on the grounds for the exclusion of illegality under Article 310 of the Criminal Act, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)