The protected legal interest in the crime of insult (=the external reputation) and the meaning of “defluence” / In order to establish the crime of insult, whether the external reputation of the victim is practically infringed or whether there is a risk of infringement specifically and practically (negative)

Article 311 of the Criminal Act

Supreme Court Decision 2015Do2229 Decided September 10, 2015 (Gong2015Ha, 1571) Supreme Court Decision 2016Do9674 Decided October 13, 2016 (Gong2016Ha, 1741)

Defendant

Prosecutor

Chuncheon District Court Decision 2015No1372 Decided September 8, 2016

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

The grounds of appeal are examined.

1. The facts charged of the instant case is that the Defendant, at around 00:45 on September 24, 2015, when Nonindicted 1 and Nonindicted 2 were invited to return home from the victim Nonindicted 2, a police officer belonging to the said district police station, who was dispatched to the scene, due to the payment of taxi expenses from the front of the ○○ District Police Station around 00:45 on September 24, 2015, and when Nonindicted 1 and Nonindicted 3 and Nonindicted 4 were heard by the police officer of the said district police station, and the Defendant sexually insultingd the victim by openly fluencing him.

The lower court reversed and acquitted the first instance judgment convicting the Defendant of this part of the charges on the grounds that it was difficult to judge that such expressions have undermined the external reputation of the police officer as a private person, not a police officer, or that there was an intention to insult the Defendant, while taxi drivers and police officers in front of the police station district at the time were aware of the situation where the Defendant was dispatched by the police officer without any reasonable reason and that the Defendant knew of the situation where the police officer was dispatched to the police officer, and that there was no risk that the Defendant might make an adverse assessment of the personal value of the victim police officer, due to the Defendant’s abusiveing, against the police officer’s legitimate execution of duties, on the grounds that there was no risk that the Defendant might have an adverse assessment of the personal value of the victim police officer.

2. However, we cannot accept the judgment of the court below for the following reasons.

A. The offense of insult is established when a person is openly insulting (Article 311 of the Criminal Act); and the benefit and protection of the law is the external reputation that means a social evaluation of the value of a person. Here, insult refers to expressing an abstract judgment or a sacrific sentiment that may undermine the social evaluation of a person without a statement of fact. Furthermore, the offense of insult is established by openly expressing an abstract judgment or a sacrific sentiment that may undermine the external reputation of the victim. As such, the victim’s external reputation is not practically infringed or is not likely to be infringed specifically and practically (see Supreme Court Decision 2016Do9674, Oct. 13, 2016, etc.).

B. However, according to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Defendant: (a) while leaving a taxi to the destination, the taxi engineer was driving the taxi to the front of the police station and reported the next 112 taxi engineer; and (b) the police officer, including the victim, requested the Defendant to pay the taxi fee on the front of the said police station; and (c) the Defendant made the Defendant get the Defendant off the taxi by using the voice called “on the front of the said police station,” thereby allowing the Defendant to pay for the taxi fee; and (d) the victim said that the Defendant “on the front of the said police station, she would pay for the fee, and return home.” (e.g., she must go to go to the Defendant; (e) the Defendant would go to go to the Defendant; and (e) the fact that the Defendant expressed his desire to bring the taxi to the victim.”

C. In full view of the above contents of the Defendant’s statement, surrounding circumstances at the time, police officers, etc., and the background leading up to the Defendant’s solicitation at the scene, it is deemed that the Defendant committed an insulting act in a danger of undermining the assessment of the personal value of the police officers by taking advantage of an individual police officer’s desire to make the Defendant pay reasonable fees to the Defendant at the time and safe returning to the Republic of Korea, thereby undermining the assessment of the personal value of the police officers. This merely is difficult to evaluate the situation at the time. Furthermore, even if it was possible to recognize that the Defendant could have known that the Defendant would not take care of his or her speech without any justifiable ground because people who had been in the relevant place had kept before and after the passage, it is difficult to deny the abstract risk that may undermine the external reputation of the police officer, who is the victim, even if it appears that there was the possibility of public performance and dissemination.

D. Nevertheless, the lower court rendered a not-guilty verdict of the facts charged on the grounds as indicated in its reasoning. In so doing, it erred by misapprehending the legal principles on the meaning of insult and the legal nature of the offense of insult, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

3. 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 Kim Yong-deok (Presiding Justice)