Where the insult by collective indication constitutes a crime of insult against an individual member and specific criteria for determination;

Article 311 of the Criminal Act

Supreme Court Decision 2002Da63558 Decided September 2, 2003 (Gong2003Ha, 1936) Supreme Court Decision 2004Da35199 Decided May 12, 2006 (Gong2006Sang, 1020)

Defendant 1 and one other

Defendants

Attorney Anti-Hun-Hun

Seoul Central District Court Decision 2010No4755 Decided October 17, 2012

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. 원심은 그 채택 증거를 종합하여, 피고인들이 인터넷 다음 사이트의 아고라 토론방에 “개독알밥 ○○○○ 꼴통놈들은”, “전문시위꾼 ○○○○ 똘마니들”, “존만이들아” 등 판시와 같은 글을 게재하여 공연히 ‘○○○○’의 회원인 피해자 공소외인을 모욕하였다는 이 사건 예비적 공소사실을 유죄로 인정하였다.

2. However, the lower court’s determination is difficult to accept for the following reasons.

In a case where it is difficult to interpret that the content of insult is for a specific person who belongs to the group, and the degree of criticism by a collective mark has reached the degree of impact on the social evaluation of the individual members due to the dilution of the degree of criticism in the case of an individual member, the insult against the individual member is not established. However, if it is deemed that the number of members is small to the extent that it is regarded as the individual member or that it is referred to as an individual member in the group in light of the surrounding circumstances at the time, etc., the individual member in the group shall be specified as the victim. The specific criteria include the size of the group, the nature of the group and the status of the victim in the group (see Supreme Court Decision 2002Da63558, Sept. 2, 2003).

However, according to the records, “○○○○” is a car page opened in the Internet portal site by anyone who objects to illegal excessive violence demonstration, and can join relatively easily as a member through a simple questioning procedure presented in the car page. At the time of the instant case, the number of members became 36,000 persons at the time of the instant case. Members mainly act in a way that free opinions are freely divided through a car page bulletin board, and in the process, only use of Aradi or an undisclosed clinic and the personal information is not revealed, and the victim was the ordinary member of “○○○○○” at the time of the instant case, and then the operator later was a specific member of “○○○○○○” including the victim, and there is no expression that can be seen as referring to the specific member of “○○○○” including the victim.

In light of the above, it is sufficient to view that each of the instant cases in which the Defendants posted the Defendants is against the general public of the Internet car page “○○○○○○” and it did not reach the degree of influence on the victim’s individual social evaluation by dilution. On the other hand, it is difficult to deem that the Defendants had the intent to insult the victim, who is only one of the members of the “○○○○○”.

Therefore, the court below erred by misapprehending the legal principles as to the offense of insult by collective mark, which found the Defendants guilty of the conjunctive charges of this case, and thereby adversely affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, among the judgment of the court below, the part concerning the ancillary facts against the Defendants cannot be reversed, and accordingly, the part concerning the main facts charged should be reversed. Therefore, the part concerning the Defendants among the judgment below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)