2010No615 Act on Promotion of Information and Communications Network Utilization and Information Protection (Name)

(defluence), insult

Jo○ (xx -xx xxx x), and non-permanents

A 00-dong residential Kimpo-si 00-dong residential Kimpo-si - 00-dong residential - Dong-dong

-00 square meters 00 square meters -

Defendant and Prosecutor

Original text

Law Firm Cheongan

[Defendant-Appellant]

Seoul Central District Court Decision 2009Da6302 Decided February 5, 2010

July 16, 2010

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) An insulting point

The Defendant’s comments do not contain insulting expressions that undermine the social evaluation of victim Maga Mana, and even if a family insult is included, the victim first posted the above writing to the effect that the Defendant’s act was not contrary to the social rules in light of the motive, circumstance, method of expression, etc., and thus, the Defendant’s act constitutes an act that does not violate the social rules. However, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal principles, such as incomplete deliberation, misconception of facts, or misapprehending the legal principles. (2) In so doing, the lower court found the Defendant guilty of this part of the facts charged, although it was not false or false, or the Defendant posted the above writing for the benefit of the public, and the Defendant did not recognize that it was false, and there was no purpose of slandering the victim. In so doing, the lower court found the Defendant guilty of this part of the facts charged.

(b) Prosecutors;

The sentencing of the court below is too uncomparably unfair.

2. Judgment on the grounds for appeal by the defendant

A. Whether insult 1) is insulting

In the crime of insult, insult as referred to in the crime of insult is an expression of abstract judgment or sacrific sentiment that could undermine people's social evaluation without mentioning facts (see Supreme Court Decision 2003Do3972 delivered on November 28, 2003).

With respect to this case, the evidence duly adopted and examined by the public health unit, the original court and the trial court shall be integrated and recognized as a whole * on January 26, 2009 ** on the bulletin board of the party * on June 2009 and June 2, 2009.

21. In light of the contents and context of the comments posted on one's Internet Blogs, the ordinary meaning and usage of that expression, etc., the expressions, such as " particularly *** ' below ' below ' below ' below ' below ' below ' ' ' below ',' 'Irrrrrrrk' 's 'Irknkn', 'non-sknkn ',' and 'wern', expressed an abstract judgment or anti-satis ' which could undermine social assessment by neglecting the victim, and constitute an insulting speech. 2) Whether the defendant's act is a legitimate act.

In a case where a certain article contains an insulting expression, in light of the motive, circumstance, and background leading up to posting the article, the overall purport of the article, specific method of expression, logical and objective validity of the premised on the premise that it is objectively reasonable, and the overall content of the article, if it is merely a use of partially insulting expression in the course of emphasizing that it is reasonable to state his opinion on the relevant facts or issues surrounding it and the attitude of the victim taken by him/her, and that his/her decision and opinion are reasonable, barring any special circumstances, it is an act contrary to social rules, and thus, unlawful under Article 20 of the Criminal Act is excluded.

However, even if the filing of a matter of public concern should be widely permitted without any specific circumstance, it should be ensured so that it is not permitted to gather maliciously without any support of the specific circumstance, and even if it is based on specific circumstances, it should be selected on the basis of respecting the personality of the other party. Even if there is any matter subject to criticism, if there is a personal attack, it cannot be established if it is done with an ambiguous expression (see Supreme Court Decision 2007Do9411, Feb. 28, 2008; Supreme Court Decision 2008Do2025, Aug. 21, 2008).

As to the instant case, even if the Defendant, as alleged in the Defendant, judged that the victim first used insulting expressions to criticize the Defendant, and then posted the above article to the effect that the victim would be disfounded, it is reasonable to deem that the Defendant’s act constitutes a case where the Defendant’s act constitutes personal attack by continuously using an ambiguous expression that does not have any relation to the Defendant’s assertion or that does not need to be written even if it did not criticize the victim’s specific behavior based on logical and objective grounds, but solely taking advantage of the fact that the above insulting expressions are repeated and forms a considerable part of the entire text, the overall purport of the above article, and logical and objective validity of the premise facts, etc. In light of the logical and objective grounds, it is reasonable to deem that the Defendant’s act constitutes a case where the Defendant’s act does not violate the social rules.

3) Sub-decisions

Therefore, this part of the defendant's argument is without merit.

B. Criteria for determining whether there was a false representation of the violation of Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (Defamation)

In order to establish the crime of defamation by publicly alleging false facts, the criminal must publicly make a statement of fact and undermine the people's social evaluation, and the criminal should have recognized that such facts are false. Here, in a case where the important parts are consistent with the objective facts, even if there is a little or exaggerated expression, it cannot be deemed a false fact. However, in determining whether the material part is false, it shall be determined whether the part that is not consistent with the objective fact is an important part by examining the overall purport of the publicly alleged facts in light of the whole purport of the facts. In a case where the criminal defendant contests the subjective elements of the crime of defamation, the establishment of the crime should be determined by comprehensively taking into account individual circumstances such as facts, status, and duties, which the criminal defendant specifically recognized at the time of engaging in the expressive act (see Supreme Court Decision 2006Do6322, Jul. 13, 2007).

B) The part related to the publication of the Internet media

The following circumstances recognized by the court below and the court below comprehensively based on the evidence duly adopted and examined: ① the defendant has published a notice of "the contents of" on the bulletin board of the political party********, ****, ***, ***, *********************, ************************'s news, ************'s news'***********'s news'************************ the Internet's news'*** the contents of the Internet.

C) The portion related to the embezzlement and distribution

원심 및 당심이 적법하게 채택하여 조사한 증거들을 종합하여 인정되는 다음과 같은 사정, 즉 ① 피고인이 2009. 4. 10. * * * 당 인터넷 게시판에 " 이번의 30억 원 횡령설 유포는 처음부터 변 * * 와 추 * * 아이들의 공모로 이루어졌습니다 ", " 변 * * 는 행동대장에 불과하고 그 윗놈들을 잡아야 합니다. … 똥파리 잡기 위해 약 좀 쳐야겠습니다 "라는 내용의 글을 게시한 점, ② 한편, 추 * * 이 대표로 있는 ' * * * 뉴스 ' 가 2009. 3 .

21. 게시한 ' 진○○, 30억 원대 부실사업, 공금유용 의혹 ' 이라는 제목의 기사는, 피고인이 당시 재직하고 있던 * * * * 종합학교의 30억 원대 통섭원 사업이 부실운영된 것이 아니냐는 의혹을 제기하였을 뿐이고, 피고인이 30억 원을 횡령하였다는 취지는 아니었던 점, ③ ' * * * 뉴스 ' 는 인터넷미디어협회 ( 이하 ♣♣이라 한다 ) 소속의 인터넷매체로서 O & & 이 * * * * 종합학교의 학생의 제보로 취재하여 배포한 자료를 근거로 위 기사를 게시하였을 뿐이며 위 취재에는 관여한 사실이 없고, 피해자는 ○ & & 의 정책 위원장으로 위 취재에만 관여한 점, ④ 익명으로 작성된 인터넷 게시판에 피해자가 강의 중 피고인이 미술계 비리를 저질러 감옥에 갈 것이라는 발언을 한 것으로 되어 있다고 하여 피해자가 피고인의 30억 원 횡령설을 유포하였다고 단정하기 어렵고, 나아가 피고인이 위 적시된 사실이 진실이라고 믿을 만한 상당한 이유가 있었다고 보기도 어려운 점 등에 비추어 보면, 위 적시된 사실은 중요한 부분이 객관적 사실과 합치되지 아니하여 허위이고 피고인도 허위임을 인식하였다고 봄이 상당하다 . 2 ) 비방의 목적 여부

"Purpose of slandering a person" under Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is required to express an intent or purpose, and whether a person is purposely to defame a person is determined by considering the contents and nature of the relevant publicly alleged fact, the scope of the other party to whom the relevant fact was published, and the method of expression itself, and other relevant factors. At the same time, considering the degree of infringement of reputation that may be damaged or damaged by the expression, it is determined by comparing and considering the degree of infringement. Since the publicly alleged facts are contrary to the subjective intent of the actor, it is reasonable to deem that the purpose of slandering a person is denied unless there are special circumstances, unless it is related to the public interest. It includes not only the interests of the State, society, and other general public, but also the interests and interests of a specific social group or its entire members, and if the main motive or purpose of the actor is for the public interest, it is difficult to deem that there is a purpose of slandering a person’s major purpose or purpose, even if other private interest purposes or motive are included (see Supreme Court Decision 2008Do4858, Sept. 28, 2008, 208.

As to the instant case, in light of the following factors: (a) the Defendant and the victim’s status as seen earlier; (b) the content and character of the alleged fact; (c) the method and time of expression; (d) the nature of the posted Internet bulletin board; (b) the scope of the other party’s publication; and (c) the degree of infringement of the victim’s reputation, etc., it is reasonable to deem that the primary motive or purpose of the Defendant’s publication

3) Sub-decisions

Therefore, all of the defendant's arguments are without merit.

3. Judgment on the prosecutor's grounds for appeal

Considering the fact that the Defendant again committed the instant crime even though he was sentenced to a fine due to the crime of insult, it is necessary to strictly punish the Defendant; however, there is no other criminal records other than the above fine, the background and process of debate between the Defendant and the victim, the circumstance that the Defendant led to the instant crime, and other circumstances that may be taken into account, taking into account the Defendant’s age, character and character, environment, motive, means and consequence of the instant crime, and the conditions of sentencing as indicated in the instant argument, such as the circumstances after the crime, etc., the lower court’s punishment is too unjustifiable and unreasonable. Thus, the prosecutor’s aforementioned assertion is without merit.

4. Conclusion

Therefore, since the defendant and prosecutor's appeal are without merit, they are all dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Lee Jae-young

Judges Yu Dong-dong

Judges Cho Young-young