206Na28135 Requests for counterargument

Government Information Agency

Seoul Jongno-gu 80

Representative Minister Kim Chang-ho

Law Firm Gyeong, Attorney Gyeong-hwan

Attorney Jeon Tae-gu

Appellant and Appellant

○○○ Digital Engineer Co., Ltd.

Seoul Jongno-ro 139

Representative Director Kim Jae-hoon

Attorney Park Yong-sik, Counsel for the defendant-appellant

Seoul District Court Decision 2001Kaz. 11669 Delivered on October 19, 2001

Seoul High Court Decision 2001Na67203 delivered on July 25, 2002

Supreme Court Decision 2002Da49040 Delivered on February 10, 2006

November 8, 2006

January 24, 2007

1. The part against the respondent in the judgment of the court of first instance shall be revoked, and the petitioner's application for the above revocation shall be dismissed.

2. After the pronouncement of this judgment, the respondent may make a report of the same content as that of the annex 8.

3. The Claimant shall pay 18,896,00 won to the Respondent.

4. The total cost of the lawsuit shall be borne by the applicant;

The purport of the request, such as the purport of the appeal, the cancellation judgment

1. Purport of request;

The respondent, after receiving the judgment of the first instance court, shall publish the counterargument report mentioned in the attached Table 5 as a box technician on the fourth page of the ○○○○ Daily Report issued for the first time, the counterargument report mentioned in the attached Table 5 as the same body and active size as the body and active size of the attached Table 2, the counterargument report mentioned in the attached Form 6 as the body and active size as shown in the attached Table 3, and the counterargument report listed in the attached Form 5 as a box news in the attached Form 4, in the same body and active size as the body and active size as shown in the attached Table 4, respectively, and in the case where the respondent fails to comply with the above obligation, the respondent shall pay the applicant an amount equivalent to 5,00,000 won per day from the day after ordering the above counterargument report to the time of completion of the performance.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the applicant corresponding to the order for performance in the next part of the judgment of the court of first instance shall be revoked. The respondent shall be a winner news on the fourth page of the 0000 daily newspaper that was first issued after receiving the judgment of the court of first instance, and shall publish the counterargument report stated in the attached Form 6 once in the form of body and active size such as the title, main body, and main body of the attached article 3, and where the respondent fails to perform the above obligation, the respondent shall pay the applicant the amount equivalent to five thousand won per day from the day after ordering the above counterargument report to the time of completion of performance.

Respondents: as set forth in paragraph (1).

3. Purport of request, such as a report of cancellation.

It is as set forth in paragraphs 2 and 3 of this Decree.

1. Facts of recognition;

The following facts are not disputed between the parties:

A. Status of the parties

Under the Government Organization Act, the applicant is an institution in charge of public relations in Korea and abroad, coordination of public relations affairs within the government, gathering public opinion on government affairs, and making government announcements. The Minister of Government Information, which is the representative of the applicant, is in charge of affairs representing the government, and the respondent is a press that publishes a daily newspaper called ○○ daily newspaper.

B. Report of this case by the respondent

On July 4, 2001, the respondent attached 2 articles No. 1 (hereinafter referred to as the "Report No. 1 of this case"), No. 4 of the same day, No. 5 of the same day, and No. 2 of the report No. 1 of this case, No. 4 of the same day, and No. 7 of July 2001.

5. The attached 3 articles (hereinafter referred to as "the attached 3 reports of this case") were published on one's four pages.

C. The plaintiff (1) filed a claim for counterargument of this case with respect to each of the reports of this case, seeking a publication of the counterargument report as shown in attached Forms 5 through 7, and the first instance court ordered a publication of the counterargument report of this case on October 19, 201 and an indirect compulsory performance of KRW 5 million per day, citing part of the applicant's claim, with respect to the report of this case 1 and 2, the court of first instance ordered a publication of the counterargument report of this case and an indirect compulsory performance of KRW 5 million per day on October 19, 201. As to the report of this case 3 reports of this case, the court of first instance rendered

25. A printing a counterargument report.

(2) On July 25, 2002, the first instance court dismissed both appeals on July 25, 200, and only the respondent filed an appeal on the part concerning the first and second reports of this case among the judgment of the first instance court prior to remand. The Supreme Court reversed and remanded the first instance judgment prior to remand on February 10, 2006 on the claim concerning the first and second reports of this case filed on February 10, 2006 (i.e., the claim for the third reports of this case for which no appeal has been filed has been filed independently, and thus, the scope of the judgment of this court is limited to the claim for the first and second reports of this case and the claim for the revocation judgment filed at the trial after the remand).

2. Determination on this safety defense

The respondent asserts that the applicant is merely a government organization under the jurisdiction of the Prime Minister and not only the party ability under the litigation law but also the party standing is not recognized.

The former Act on the Guarantee of Freedom and Functions of Newspapers (Act No. 7369, Jan. 27, 2005) and the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports (Act No. 7370, Jan. 27, 2005) are valid until July 27, 2005, but it applies to this case pursuant to Articles 2 and 3 of the Addenda of the Act on the Press Arbitration and Remedies, etc. for Damage Caused by Press Reports. hereinafter referred to as the "Periodical Act") provides that the head of the State, a local government, an institution or an organization may request a counterargument report on behalf of the institution or organization concerned. This provision provides that an institution or organization which is not recognized as a party under the provisions of the Civil Procedure Act can also be identified as one activity in a social life, and an institution or organization which directly performs its own functions as a party's right to request a counterargument report and, if so, can be recognized as an independent right to request a counterargument report separately from the State or organization under private law.

On the other hand, Article 24-2 (1) of the Government Organization Act provides that "The Government Information Agency shall be established under the jurisdiction of the Prime Minister in order to take charge of the affairs concerning public relations in Korea and abroad, coordination of public relations affairs within the Government, gathering public opinion on government affairs, and government announcements." The records show that the applicant is performing the above affairs as a national administrative agency. Thus, the applicant is obvious that the applicant falls under the "agency" under the provisions of the law, so that the applicant has the capacity to be a party in the claim for counter-performance, and as long as the claim for counter-performance falls under the action for performance, the eligibility to be a party is recognized by the applicant's own claim. Accordingly, the respondent's above defense of safety is without merit.

3. Judgment on the merits

A. Respondent's assertion

The respondent asserts that a claim for counter-performance of a claim for counter-performance of a factual argument can only be made, and that the report 1 and 2 of this case is not subject to a claim for counter-performance of a claim for counter-performance of a press organization that criticizes the performance of state affairs of the Government Information Agency.

B. Determination

(1) The right to request a counterargument is constitutional because the subject of a counterargument is limited to a factual assertion (see Constitutional Court Order 89HunMa165, Sept. 16, 1991). In a case of a request for a counterargument, it is very important to distinguish whether the original report (in this case, hereinafter referred to as the "original report") which is the subject of the counterargument is a factual assertion or a simple expression of opinion.

In addition, if the motive, purpose, psychological condition, etc. of the original report, including the process or condition externally recognizable, is displayed externally, it can be determined as a factual assertion in order to distinguish a factual assertion from an expression of opinion.

However, such abstract judgment criteria are not always clear, and they are ordinarily reported in the form of a mixture of factual arguments and comments, etc., so the judgment criteria themselves cannot be deemed to be one-way. In addition to the objective contents of the original report in question, not only the ordinary meaning of words used on the premise of a method of ordinary reader’s access to the original report with ordinary care, but also the social flow that forms a broad context or background in which the original report is published, and the overall impression that the original report is made to the reader should also be considered.

In addition, whether the original report is a factual assertion or an expression of opinion can be confirmed through comparison between the original report and the counterargument report seeking a publication on such original report. If the original report and the counterargument report are either informed of different specific progress or describing situations, the original report shall be deemed a factual assertion. However, if the original report is not to know a new situation but to reconvene the original report, it shall be deemed that the original report is merely an expression of opinion.

On the other hand, if the original report quoted a third party's opinion and reported, if the subject of the claim for objection is whether the third party has actually expressed such opinion, it shall be deemed a factual assertion. However, if the original report reports the third party's opinion with his own opinion, and if the purport of the counterargument is not to consider whether the third party has actually expressed such opinion in the counterargument report, the original report shall not be deemed a method of expression of opinion. (2) According to the health division and records, the applicant is from June 23, 201 to July of the same year.

2. For up to 10 days, some press reports pertaining to the investigation of media companies are biased and distorted reports for the rationalization of their tax corruption, and in this regard, the respondent published articles related to the remaining names on June 28, 2001 in the daily newspaper, and then published the report of this case as of July 4, 2001, and recognized the facts that the report of this case was made as a private opinion on the same day. The respondent published such facts and a summary of its name four times for a relatively short period of time, and published the applicant's assertion that these names are legitimate exercise of governmental rights, and it is not an "distort of government reports" or "distort of government reports" or "distort of government reports," or "distort of government reports," or "distort of government reports," or "distort of government reports," or "in the form of an attack of government reports," or "distort of government reports," or "in the form of the applicant's assertion that these names are legitimate exercise of government rights."

However, in light of the overall raise and context of the original report, the report of this case does not appear to be an essential point of the report that the applicant itself or the applicant’s repeated statement of the fact that there was such response or point of view in the government, etc., or that it is intended to reveal that his or her repeated statement of name deviates from his or her business scope, but rather, it would be better for the applicant to express his or her opinion or criticism in the form of citing a third party’s statement that is inappropriate or not arising in light of the government’s authority. The report of this case appears to have expressed his or her opinion or request, and the report of this case of this case is an article that constitutes an expression or comment in its own view, and it is reasonable to see that the respondent who was subject to tax investigation at the time of such report evaluated his or her own opinion and criticizes the contents of the government’s name in relation to the press report, and even if the applicant seeks such opinion, it is not an objective reply to the press report’s name or criticism.

Therefore, the report 1 and 2 of this case is not a factual assertion that is the subject of the counterargument, and therefore the applicant's claim 1 and 2 of this case is without merit without further review.

4. Judgment on an application for cancellation, news, etc.

Article 19-2 of the Periodicals Act provides that in case where the appellate court of a judgment that admitted a request for counter-performance is revoked by dismissing all or part of the request for counter-performance, if the press has already performed the obligation of counter-performance, the contents of the judgment of revocation may be reported at his/her request, and the victim shall be ordered to compensate for appropriate damage as a fee for publication of the news report that has already been implemented by the press organization, expenses necessary for the report of the judgment of revocation, and the fee for the space.

On the other hand, since the judgment of the court of first instance after the remand all of the claims for a counterargument report on the first and second reports of this case is dismissed, the judgment of the court of first instance which partially accepted them must be revoked, and the respondent has already performed the obligation of a counterargument report in accordance with the judgment of the court of first instance which partially admitted the claims for a counterargument report of this case, and it is obvious in the record that the respondent has sought a report of the revocation judgment and compensation for damages at the court of first instance after the remand, the court of first instance shall order the revocation judgment and the compensation for damages as follows:

First, the contents of the report of the cancellation decision shall be as shown in the attached Table 8, and the damages for the report of the cancellation decision shall be the amount equivalent to the advertising fees necessary for the advertisement on the paper of the form and size necessary for the above report, and according to the statement in the evidence No. 11 and No. 12-1 of the lawsuit No. 12, the respondent's objection report already implemented on November 10, 2001 constitutes "protruding out advertisements" among the articles, and its size shall be 23.62, and the unit price of the advertisement per unit shall be 40,00 won for the counterargument report already implemented is 9,448,00 won (40,000 won, X23.62,00 won, and the damages for the cancellation decision shall be 981,000 won, and there shall be no change in the unit price of the report No. 2084,00 won.

In this regard, since the respondent has already published the contents of the judgment of the court of final appeal, the applicant asserts to the effect that there is no interest in the application such as the report of the cancellation judgment of this case. However, just because it is alleged by the applicant, it cannot be said that there is no interest in the cancellation judgment that revoked the judgment of the court of final appeal of the court

5. Conclusion

Therefore, the plaintiff's claim for objection against the first and second reports of this case shall be dismissed as it is without merit, and since the judgment of the first instance court which concluded otherwise is unfair, the plaintiff's claim against the above revoked part shall be dismissed. The respondent's claim for objection against the first and second reports of this case shall be accepted as it is with merit, and it shall be so decided as per Disposition.

Judges and equipment of the presiding judge

Judge Lee Jae-soo

Judges Cho Il-il