A. Requirements for establishing defamation under Article 309(2) of the Criminal Act

B. The burden of proving the falsity of “A”

A. In order to establish a crime of defamation by publication, etc. under Article 309(2) of the Criminal Act, the statement of the facts should be deemed to be false, and the offender should be aware that such facts are false. If the offender did not recognize that such facts were false, the punishment of the crime under Article 309(1) of the Criminal Act is a crime under Article 309(2) of the Criminal Act, separate from the punishment of the crime under Article 309(2) of the Criminal Act.

B. The public prosecutor bears the burden of proving the falsity of “A”, that is, the burden of proving the criminal intent.

Articles 309(2) and 307(2) of the Criminal Act

A. Supreme Court Decision 88Do1008 delivered on September 27, 198 (Gong1988, 1361) 91Do156 delivered on March 27, 1991 (Gong191, 1323)

Defendant

Defendant

Gwangju District Court Decision 94No276 delivered on July 8, 1994

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

The grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance that found the defendant guilty of the crime committed against the defendant, on August 24, 1993 and on the 26th day of the same month, each of the contents such as the written indictment was published in the Seoul Newspapers, and there was no obvious ground to believe that the contents are false, and that the defendant's posting of the above newspapers with the same contents cannot be deemed to solely for the purpose of promoting the fairness of investigation, nor for the purpose of impairing the honor of the victims.

However, in order to establish the crime of defamation by publication under Article 309(2) of the Criminal Act, the statement of facts should be false, and the offender should be aware that such facts are false. If the offender did not know that such facts are false, the offender shall not be punished as the crime under Article 309(1) of the Criminal Act, aside from the punishment of the crime under Article 309(1) of the Criminal Act, the offender shall not be punished as the crime under Article 309(2) of the same Act. In other words, the burden of proof for the criminal intent shall be imposed on the prosecutor.

According to the reasoning of the judgment of the court of first instance maintained by the court below, the court below should have acknowledged the defendant's partial statement in the court of law, the statement consistent with the judgment among the statement statement No. 1 prepared by the prosecutor, and the statement No. 1 prepared by the court of first instance. However, according to the records, although the defendant had consistently filed a complaint against the victim No. 1 from the prosecutor's office to the court of first instance, the prosecutor's office took a disposition of suspicion against the victim No. 1 and did not know that the above Kim Young-young was working in the KBS Gwangju broadcasting station at ordinary times, or there was a fire accident No. 24444, Nov. 13, 192. The court below acknowledged the defendant's non-indicted No. 1's oral statement No. 2 and the defendant's non-indicted No. 1's non-indicted No. s. s. 3 and 1's oral statement No. s. 324448, Dec. 24, 1997>

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

Justices Park Jong-ho (Presiding Justice)