[1] Requirements to recognize admissibility of a recording tape with a private person who recorded a conversation with a person other than the defendant

[2] In a case where the defendant was indicted on charges of impairing the reputation of the victim by pointing out false facts in his/her mother's dialogue with his/her own mother Gap, the case holding that Gap's recording tape recording the contents of conversation with Gap's neighbor Eul, which was recorded on the basis of recording tape recording the contents of conversation with Gap's neighbor Eul, has no admissibility of evidence and it cannot be used as evidence of guilt

[3] The meaning of "public performance" among the elements of defamation

[4] In a case where the defendant was indicted on charges of impairing the honor of the victim by stating the false fact that "the victim was suffering from mental illness because he/she was aware of his/her own child, etc. and was hospitalized in the sick room of the victim's own child, etc. after finding the victim's his/her mother's contact with the victim's mother Eul and the defendant's sexual intercourse with the victim's mother Eul, etc., the case holding that the judgment below which found the defendant guilty on the ground that the defendant's speech had a performance, erred by misapprehending legal principles

[1] The recording tape, which recorded the contents of conversation with a person other than the defendant who is not an investigation agency, does not differ from documents that contain the statement of a person other than the defendant other than the defendant under Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant does not agree that the recording tape can be admitted as evidence, in order to grant admissibility of evidence, first, if the recording tape is the original or copied from the original, it shall be a copy of the original without any artificial modification such as editing compiled in the duplication process, and second, it shall be recognized that each person's statement recorded in the recording tape at a preparatory hearing or during a public trial pursuant to Article 313 (1) of the Criminal Procedure Act was recorded as stated by the person who made the original statement.

[2] In a case where the defendant was indicted on charges of impairing the victim's reputation by pointing out false facts in his or her mother's interview with his or her own her own son, etc., the court held that the record of the court below's admission as evidence of guilt was made based on the recording tape, etc. which recorded the conversation between Gap and his or her neighbor Eul, and thus, it can be acknowledged that the defendant's consent is obtained in accordance with the statement under Article 313 of the Criminal Procedure Act, or the authenticity of its establishment by the statement at a preparatory hearing or during a public trial, and the defendant did not agree to the recording record as evidence, and the court below stated that "A was the end of the defendant at the time of this case" at the court of the court below that "A did not present the recording, etc. at this time, and without submitting as evidence the original recording tape, etc. which was the basis of the recording record's preparation as evidence, and it cannot be admitted that the recording was made as recorded at the preparatory hearing or public trial of Gap and Eul, and it cannot be admitted as evidence.

[3] In the crime of defamation, “public performance” refers to a state in which many, unspecified or unspecified persons can be recognized, and even if the facts are distributed to one person individually, if there is a possibility of spreading them to many, unspecified or unspecified persons, the requirements of public performance are satisfied, but if there is no possibility of spreading any other matter, the spread of facts to a specific person does not have a

[4] In a case where the defendant was indicted on charges of damaging the reputation of the victim by referring to the false statement that "the victim was suffering from mental illness because he was aware of the victim's illness," and referring to the victim's neighboring Eul and the defendant's sexual intercourses with his own her mother Gap, the case holding that the judgment below convicting the defendant on the grounds that it is erroneous in misapprehension of legal principles and incomplete deliberation, since it is difficult to view that the defendant's statement is likely to spread to many unspecified or unspecified persons in light of various circumstances, such as the relationship between the defendant, A, B, and D, and the victim's illness together with the victim's illness, if the defendant made the above statement while dividing the victim's assault case's interview with the victim's her own her own son, etc.

[1] Articles 307, 311, 312, 313(1), and 318 of the Criminal Procedure Act / [2] Article 307(2) of the Criminal Act; Articles 307, 313, and 318 of the Criminal Procedure Act / [3] Article 307 of the Criminal Act / [4] Article 307(2) of the Criminal Act

[1] Supreme Court Decision 98Do3169 delivered on March 9, 199 (Gong199Sang, 697) Supreme Court Decision 2004Do6323 Delivered on February 18, 2005 (Gong2010Sang, 778) / [3] Supreme Court Decision 83Do891 Delivered on February 28, 1984 (Gong1984, 641) and Supreme Court Decision 83Do49 delivered on April 10, 197 (Gong1984, 859) and Supreme Court Decision 89Do1467 delivered on April 27, 190 (Gong190, 190; Supreme Court Decision 209Do4979 delivered on April 29, 209)

Defendant

Defendant

Daejeon District Court Decision 2010No354 decided May 27, 2010

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

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

1. The judgment of the court below

According to the reasoning of the judgment below, the court below found facts as stated in its reasoning based on the statement, recording, etc. of the witness Non-Indicted 1 and 2 of the court below, and found the defendant as the sick room of the victim Non-Indicted 4 who was hospitalized by his own son Non-Indicted 3, etc., and found his mother as the victim Non-Indicted 1, who was her mother of Non-Indicted 1, "I will know why she had a mental disorder," thereby impairing the victim's reputation. It is reasonable to view that the defendant's words such as the defendant's facts charged are proved to the extent that there is no reasonable doubt, and it is only limited to the non-Indicted 2, but it is merely a person engaged in business in another store of the same building as Non-Indicted 1, and thus there is no special relationship with the defendant, and therefore, it is highly probable that the defendant's timely dissemination of the facts charged and the possibility that the legal dispute had already occurred between the non-Indicted 1 and the non-indicted 1's own shop, which had been aware of the possibility of the crime of defamation.

2. Judgment of the Supreme Court

A. As to the admissibility of the recording record

A recording tape in which a private person other than the investigation agency recorded a conversation with a person other than the defendant does not differ from documents in which the statement of a person other than the defendant is written, except as provided in Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant does not agree that the recording tape can be admitted as evidence, in order to grant admissibility, first, in the case where the recording tape is the original or a copy of the original, it shall be a copy of the original without any artificial modification, such as editing in the duplication process, and second, in accordance with Article 313(1) of the Criminal Procedure Act, it shall be recognized that each person's statement recorded in the recording tape was recorded as stated by the person making the original statement at a preparatory hearing or during a public trial (see Supreme Court Decision 2004Do6323, Feb. 18, 2005, etc.).

The record of the court below, which was adopted as evidence of guilt, was prepared by Non-Indicted 1, a private person, on the basis of the recording tape, etc. of the contents of conversation with Non-Indicted 2, who is not the defendant. The defendant's consent or the authenticity of its formation by the statement at the preparatory hearing or the trial date according to the statement of Article 313 of the Criminal Procedure Act, can be admitted as evidence. The defendant did not consent to the above recording record as evidence, and Non-Indicted 1 stated at the court of the court of the court below that "Non-Indicted 2 took the words of the defendant at the time of the case. So this record has been recorded." The prosecutor did not submit the original recording tape, etc. of the contents of conversation, which was the basis of the recording record, as evidence, and the prosecutor did not recognize that the recording was written as stated in his statement at the preparatory hearing or the trial date of Non-Indicted 1 and Non-Indicted 2, and therefore, it cannot be admissible as evidence for conviction since the above recording can not be used as evidence.

B. As to the crime of defamation

In addition, the statement of Nonindicted 2’s first instance court and the lower court, which the lower court employed as evidence of guilt, is merely that the Defendant could not have heard the same as the written facts charged. Nonindicted 2, who was a witness at the prosecution near Nonindicted 1, was consistently stated in the first instance court and the lower court court’s court. Nonindicted 5, who visited the sick room together with the Defendant, was asked at the court of first instance as to whether the Defendant had received a mental diagnosis and treatment in the past. As such, it was difficult to readily conclude that Nonindicted 4 had a mental disorder from the Defendant and the Defendant’s oral statement to the effect that “It was difficult to conclude that Nonindicted 4 had a mental disorder from Daejeon Hospital and outside the court of first instance,” and that Nonindicted 4 had a mental disorder from the Defendant’s oral statement to the effect that “It was difficult to conclude that Nonindicted 4 had a mental disorder from the Defendant and the Defendant’s oral statement to the lower court.” In light of the fact that Nonindicted 4 had a mental disorder from the Defendant’s oral statement to the Defendant and the Defendant’s oral statement.

C. As to the public performance of defamation

In the crime of defamation, performance refers to a state in which many and unspecified persons can be recognized, and even if one person spreads facts individually, if there is a possibility of spreading them to many and unspecified persons, the requirements of public performance should be satisfied. However, if there is no possibility of spreading any other fact, the spread of facts to a specific person must determine performance (see Supreme Court Decisions 83Do891, Feb. 28, 1984; 99Do4579, Feb. 11, 2000, etc.).

According to the records, at the site of this case, the Defendant and the victim’s mother were only Nonindicted 2 and Nonindicted 5 except for Nonindicted 1, and Nonindicted 2 was aware of the fact that Nonindicted 1’s children were hospitalized for 5 through 6 years while running business at the store located in the same building as Nonindicted 1, and Nonindicted 2 was close to the extent that he was aware of the fact that Nonindicted 1’s children were hospitalized, and in the court of the original instance, he did not talk with others even though he did not hear the talk that there was mental illness from the Defendant. It was difficult to view that there was no person who would do so. The above building was outside the store of Nonindicted 1 and Nonindicted 2, and it was hard to view that there was no possibility that the Defendant’s remarks were disseminated by Nonindicted 2, as well as that there was no other evidence to deem that there was no possibility that the Defendant’s speech was disseminated by Nonindicted 5’s mother, and that there was no possibility that there was a mental disorder in light of the fact that there was a “the Defendant’s mental disorder” or an unspecified.

As above, if the defendant made a statement on Nonindicted 4’s illness together with Nonindicted 5 in the form of four persons, including the defendant, Nonindicted 5, Nonindicted 1, and Nonindicted 2, in the course of dividing the conversation with Nonindicted 4 with respect to the assault case against Nonindicted 4, it cannot be said that an unspecified or many people can be recognized, and it is difficult to view that the defendant’s statement may be disseminated to an unspecified or many unspecified persons in light of the aforementioned various circumstances, such as the relationship between those in the position, etc.

D. Sub-committee

Nevertheless, the court below found the defendant guilty of the facts charged of the defamation of this case, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations by misapprehending the legal principles on admissibility of the recording record, intent of the crime of defamation, and performance of defamation.

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, 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 Yang Chang-soo (Presiding Justice)