(영문) 서울중앙지방법원 2020.8.27.선고 2018노2672 판결

The Defendant’s statement is not merely a simple expression of opinion, but also a statement of fact based on a specific case that can judge the truth. The Defendant, based on false facts, derived from the wrong conclusion that “the victim is a public-privateist who denies the constitutional basic order of the Republic of Korea, demands North Korea’s system, and takes the hostile unification, thereby undermining the social value and evaluation of the victim, which goes beyond the limit of the freedom of expression.”

Nevertheless, the judgment of the court below which acquitted the defendant on the ground that the statement of the defendant does not fall under the statement of fact, or does not fall under the statement of fact or undermine the social value and evaluation of the victim, but does not exceed the limit of freedom of expression, is erroneous in the

2. Ex officio determination

In the trial of the party, the prosecutor cited the full text of the defendant's statement in the facts charged, together with the defendant's statement, stated the false facts by the above statement, and applied for the amendment of the bill of amendment to the indictment. Since this court permitted the amendment of the above indictment, the judgment of the court below is no longer maintained.

However, the prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court with regard to the revised facts charged even though there is such ground for ex officio reversal. 3. Judgment on the grounds for appeal by the prosecutor and the changed facts charged.

A. The revised facts charged

The defendant is a person who serves as the president of the S institution.

In fact, the victim D was convicted by the Supreme Court of Korea on August 23, 2012 due to the violation of the National Security Act. Among them, the victim D did not act as the defense counsel of the original case in relation to the "E" which was finally acquitted by the Supreme Court on September 25, 2014, and only changed part of the retrial cases on the grounds of false confession by illegal arrest and detention. In around 2003, it did not have any negative opinion or disadvantage on the personnel affairs of the defendant, who was the chief prosecutor of the National Security Office, while serving as the secretary in charge of the "E", and there was no fact that the defendant presented any negative opinion or gave any disadvantage to the personnel affairs of the defendant, who was the chief prosecutor of the National Security Office, on the ground that he did not claim the core contents of the public-private property system, such as the denial of the private property system, the sharing of members of the production means, or supported or inferred the North's system, the North Korean regime, or the state of public order.

Nevertheless, on January 4, 2013, the Defendant attended the H New Year's Staff Meeting held in Jung-gu Seoul, Seoul, as T qualification, and made a statement as follows, for about 400 audiences, at the end of the new year.

좌파정권 집권을 막아주신 여러분께 정말로 감사의 말씀을 드립니다.그런데 여러분들이, 이를테면 R 후보를 지지해 주신 것이 대한민국이 적화되는걸 막기 위한 것이 아마 제일 큰 이유였다고 생각이 듭니다.근데, 대한민국이 적화될 위험이라는 것에 대해서 이것이 단순한 기우가 아니고실제 일어날 수 있는 얘기라는 거를 제 경험담으로 간단하게 소개를 드리겠습니다.제가 1982년도에 부산지검 M 검사로 있을 때 제가 E의 수사검사입니다. E이라그러면 여러분들 잘 아시다시피 J 대통령이 그걸 변호를 해서 그때 E을 변호하면서 최초로 인권을 알고, 사회를 알고, 정치를 알고, 그래서 J 대통령을 대통령이 되게 해 준 사건이라 그래 가지고 굉장히 의미를 두는 사건입니다. 그 E에 D 후보도변호사였습니다.그런데 얘기를 짧게 하라 그래 가지고 최대한 축약을 하면, E은 그런 민주화운동이 아니고 공산주의 운동이었습니다. 그 피의자가 저한테 한 애기가 있습니다."지금은 우리가 검사님한테 조사를 받고 있지만, 곧 공산주의 사회가 될 겁니다. 역사가 바뀌면 주역도 바뀌는 법이고, 공산주의 사회가 곧 될 텐데, 그러면 우리가검사님을 심판하게 될 것입니다." 그렇게 했었어요.그러기 때문에 E이 공산주의 운동이었다는 거는 저는 아주 확신을 하고 있습니다. 그 이상 어떻게 확신이 있겠습니까?그러면 J 대통령이나 D 후보나 이 E이 공산주의 운동이라는 거를 잘 알고 있었을 사람입니다.자기가 변호한 사건 기록도 다 보는데 이거를, 그 사람들이 E 관련자들의 생각을 몰랐겠습니까? 그러니까 E 관련자들이 이게 공산주의 운동인 걸 알고 그런데그 후에 J 정권이 들어섰습니다.그런데 J 정권이 우리가 알기로는 공산정권이 아니지 않습니까?그런데 저는 공산주의가 우리나라에 들어올 수 없다고 얘기했고, 재네들은 우리나라에서 반드시 공산주의가 된다고 했는데, 공산주의도 안 됐는데 저한테 보복을한 겁니다.그러니까 그때 E 때는 곧 공산주의 사회가 될 텐데 공산주의 사회가 되면 나를심판하겠다고 그랬는데, 근데 우리나라 헌법은 공산주의가 안 됐는데 저를 심판한겁니다.제가 J 정권하에서 5년 동안 내내 핍박을 받다가, 제가 더럽다 그러고서는 검사장직을 그만뒀는데, 그러면 그때 청와대에 있으면서 저한테 비토권을 행사한 사람이 누구냐? 바로 D 그 당시 K이었습니다.그러니까 제가 뭐를 잘못했습니까? 대한민국의 안정과 자유민주주의 체제를 지키기 위해서 공안검사를 한 것밖에 없지, 제가 무슨 다른 비리가 있었습니까? 고문을 했습니까? 뭐를 했습니까?근데 J, 아니 D은 청와대에 있으면서 F 하고 K 하면서 계속 저를 비토하는 사람이었습니다.그러니까 그 사람은 내가 자유민주주의 체제를 지키려고 하는 것에 대해서 불만을 갖고 있는 사람이죠.그러니까, 그리고 J 정권 때 청와대 부산인맥이라는 사람들이 전부 E 관련 인맥입니다.그러면 전부 공산주의 활동, 공산주의 운동을 하는 사람들입니다. 그렇기 때문에 저는 D 후보도 이거는 공산주의자이고, 이 사람이 대통령이 되면 우리나라가 적화되는 것은 그야말로 시간문제다라고 저는 확신을 하고 있었기 때문에, 진짜 우리나라가 그 부분에 있어서 지금 적화를 면할 수 있게 된 것이 얼마나 다행인지 모르고 그 일에 앞장서 주신 여러분들이 그렇게 고마울 수가 없습니다.

As a result, the Defendant, as his defense counsel, expressed his opinion to the effect that “the injured party, as well as his defense counsel, had engaged in the act of violation of the National Security Act, which denies the system uniform and the constitutional basic order like this, and has harmed the honor of the injured party by openly pointing out false facts by openly pointing out the following facts: “At the time when he was in office as Cheongbu F and K, he had engaged in a fair and unfair act in a way of giving disadvantage to the accused with a complaint against the accused who has engaged in activities against the injured party to protect free democracy.”

B. Determination

(1) Whether the Defendant’s statement constitutes a statement of fact

(A) The term “statement of fact” in the crime of defamation refers to a statement or statement of a specific past or current fact, which is an alternative to an expression of opinion that is a value judgment or assessment, and the content thereof refers to a statement that can be proved by evidence. Whether a report or statement is a fact or an opinion is distinguishable from the ordinary meaning and usage of the language, possibility of proof, the context in which the speech in question is used, and the social situation in which the expression was made, etc. should be considered (see, e.g., Supreme Court Decision 2010Do17237, Sept. 2, 2011). In addition, the term “statement of fact” is not limited to cases where a fact is directly expressed, but it is sufficiently sufficient to determine the existence of the fact in light of the overall purport of the expression, even in cases of an indirect or round expression, and thereby, it is sufficiently possible to determine the possibility of infringing on the social value or assessment of a specific person (see, e.g., Supreme Court Decision 200Do487, Dec. 27, 207).

On the other hand, a specific fact refers to an expression of mental activity, such as having a certain perception or opinion, evaluation, judgment, or attitude with respect to facts or persons, by simply distinguishing facts from a value judgment, with regard to the expression of a specific person's past or present specific case or condition, which can be realized and proved by the error's action when understanding the meaning used in the expression generally accepted (see, e.g., Supreme Court Decision 9Do5190, Feb. 26, 2004).

(B) In the instant case, the Defendant’s remarks are premised on the premise that “the victim was the victim’s defense E and that “E was the campaign of public policy.” Of this, the victim’s defense was a proposition that clearly shows the witness and falsity, and “E was the campaign of public policy.” It is true that the Defendant was actually aware of the fact that the Defendant’s speech was supported by the experience that the Defendant was the victim’s public prosecutor’s conviction from the suspect of public policy at the time of prosecutor’s inspection.

그런데 피고인은 이러한 사실들을 기초로 '피해자는 E을 변호하면서 관련자들의 공산주의적 생각을 잘 알고 있었고, 내가 자유민주주의 체제를 지키려고 하는 데 불만을 가졌기 때문에 청와대에 근무할 당시 나에게 인사상 불이익을 주었다. J 정권 떄의 청와대 부산인맥은 전부 E 관련 인맥이다'라는 추론을 이어갔고, '따라서 피해자도 공산주의자이고, 피해자가 대통령이 되면 우리나라는 적화될 것이다'라는 결론에 다다랐다. 다시 말해, 피고인은 청중들에게 전달하고자 하는 핵심인 '피해자는 공산주의 자이다'라는 논리를 전개하기 위한 입증 방법으로서 위 객관적 사실들을 적시하였는바, 이로써 피고인의 발언은 진위를 가릴 수 있을 정도로 구체화되었다.

In addition, in the first head of the statement, the Defendant: “I would like to simply introduce the risk that the Republic of Korea will be hostile, not just a simple expression, but a finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite finite,” the Defendant

(C) Ultimately, the part stating "the victim is a person who is a person who is a counsel of E and has engaged in public policy activities or campaign of public policy." The victim expressed, at the time of investigation, that "the victim is a person who is a person who is a person who is a person of public policy and has been engaged in public policy activities or campaign of public policy." It is reasonable to see that the whole statement of fact is a statement of fact since it is possible for the defendant to verify the facts in accordance with the order of arguments that are implicitly premised on the defendant's explicit premise. Even if it is impossible to do so, the part that "the victim was a person of public policy" is a person of public policy in whole as a person of public policy, and all persons of public policy and public policy are the persons of public policy and public policy, and people of public policy activities or campaign of public policy have expressed opinions or opinions based on the stated facts, and it constitutes a whole crime of defamation, and therefore, it also constitutes a statement of fact or defamation as a whole in the past by the President of Korea."

(D) Therefore, we cannot accept the Defendant’s assertion that the Defendant’s remarks are merely an expression of opinion, not an expression of fact.

(2) Whether the Defendant’s statement was false

(A) In a case where a determination of whether a publicly alleged fact is false is made by examining the purport of the entire content of the publicly alleged fact, if the fact differs from the truth or is merely a somewhat exaggerated expression, it shall not be deemed as false, but if the material part is not consistent with the objective fact, it shall be deemed as false. Furthermore, the determination of whether a person was aware of a false fact or not should be made by taking into account various objective circumstances, such as the Defendant’s educational background, career, social status, public announcement process, time of publication, anticipated ripple effect, etc. based on the content of the publicly announced fact, the existence and content of the material part, the source and awareness of the fact alleged by the Defendant, and the circumstances leading up to the fact known by the Defendant. The intent of the crime includes not only conclusive intentional intent but also so-called negligent intentional intention, which is the intention to recognize the occurrence of the result, and thus, the crime of defamation by a publicly alleged fact also constitutes a crime of false fact (see, e.g., Supreme Court Decision 2013Do12430, Mar. 13).

(B) The facts charged in the instant case are the constituent act that the Defendant indicated “false fact,” and the following facts are the following: (i) the victim talked as if he participated in the original case with the victim’s defense counsel, and (ii) the victim talked as if he did not have any disadvantage in personnel affairs of the Defendant at the time of serving as a secretary for the Fluxan Office.

(2) First of all, the defendant cannot derive objective facts that the victim was in a political point in terms of the fact that the defendant merely stated that "I would like to see who is the person who has exercised the right to debate in Cheongdae? I would like to see who has exercised the right to debate? I would like to say that D at that time, "D would have raised questions about the fairness of personnel administration and expressed complaints?" and "D did not disclose the specific contents of personnel disadvantage and the method of involvement of the victim," and "I exercised the right to debate to Na" cannot derive more objective facts that the victim was in a political point. Therefore, this part of the statement can be seen as having presented questions about the fairness of personnel administration at the time and expressed complaints, but it is difficult to see as a detailed statement of fact that constitutes the crime of defamation.2).

1) According to the following, the Defendant stated that this part of the statement at the time of the prosecutorial investigation was not the defense counsel of the case, and that it was not the defense counsel of the case (165 pages of investigation record), and that the Defendant was the attorney at the time of the investigation of the prosecutorial investigation, and that the Defendant was the attorney at the time of the former president, who had directly investigated the case E in around 1982, and that he was the victim at the time of the above case, and that he was the attorney at the time of the former president's 's 'the victim'. The case of E was not mentioned in the entire statement of the Defendant. Accordingly, even if the Defendant did not make a specific statement that the victim was the defense counsel of the original case, it seems that the victim had not been aware that the victim was the defense counsel at the time of 1982. However, according to the results of the investigation of evidence, it is apparent that the victim did not defend the case, and therefore, this part of the statement made a false statement constitutes a case where the facts was made.

In addition, as seen earlier, the Defendant, on the premise of the fact that the Victim was changing E, derived the conclusion that both the hearing of the J authority, including the Victim, and Busan Scam, including the Victim, is a public-privateist, who has the idea of intending to fit Korea as well as the suspects of E. However, as long as there exists a broad spectrum between remuneration and inventive step, it can be said that the political personnel in the J regime have a progressive tendency as a substitute for the victim, and the conclusion that they are both E-related persons and further a strong public-privateist who promotes the hostile unification is difficult to accept, and even if the attorney acted as a counsel in any criminal case, it is difficult to conclude that the Defendant, who is a legal expert, was aware of this point, was aware of the fact that there was a lack of knowledge of the Defendant’s perception of the truth and the idea of the victim as a whole, or that there was a lack of understanding of the Defendant’s perception of the fact that there was a false perception of the victim’s ideology and the content of the report.

(C) Therefore, it is reasonable to view that the Defendant stated false facts through the instant speech and had intention to do so. Accordingly, the Defendant’s assertion to the effect that the Defendant’s contents of the Defendant’s speech are true is not accepted.

(3) Whether the victim's social evaluation has been affected by the defendant's statement

(A) It is difficult to see that the content of the Defendant’s statement that “the victim’s speech changed E” has undermined the victim’s social assessment by itself. However, the core message that the Defendant intended to deliver to the audience is a publicist who is derived from the above premise, and when the victim is the president, the Republic of Korea will be fit. Therefore, in order to determine whether the Defendant’s statement constitutes defamation by undermining the victim’s social value or evaluation, it is necessary to comprehensively consider the contents of this part’s statement as well as the entire statement.

(B) Therefore, with respect to the concept of ‘public-private partnershipist', the above term refers to a person who has an idea to eliminate the gap in advance due to the denial of the private property system and the realization of the public property system. However, in Korea as a divided country, as in the judgment of the court below, a person who asserts a friendly policy to the North Korean government, and a person who takes a position equal to or similar to the assertion or route of the North Korean regime, can be used in a negative manner. However, in our society today, there is a variety of views to view North Korea within the scope of supporting the liberal democratic basic order, which is the basic constitutional principle, so it cannot be concluded that the social evaluation has been lowered merely because it is referred to as a 'public-private partnershipist' within the meaning of a person who has a flexible view against North Korea.

However, the defendant stated that he was the investigation prosecutor of E, and that he was the victim. Then, E made a statement that he was the victim's campaign, and that "E was the victim's campaign," that "the victim was dissatisfied with the attempt to observe the free democracy system," and "when the victim is the President, it is a time problem that the Republic of Korea becomes appropriate when he was the victim," and in particular, the expression "Cheong Man Man-do, Busan at the time of the J regime is called as the person who conducts the ‘publicism' campaign, and the ‘publicism' movement. Thus, the expression "for the defendant' used as the victim' is not only a strong meaning of publicism, such as the suspect that "the defendant has been a society of publicism and will judge about his prosecutor," but also the victim's strong meaning of public order, i.e., North Korea's political system, North Korea's sovereignty, and North Korea's political order, and thus, it is still natural that the defendant still did not have a duty to engage in the activities of free democracy and policy.

(C) Therefore, it is reasonable to deem that the Defendant’s remarks constitute defamation that impairs the social assessment of the victim.

(4) Whether the Defendant’s speech is within the scope of protection of freedom of expression

(A) In a case where the expression in question concerns a political ideology of a public figure, as much as the national and social influence of a public figure affects the prosperity of the State, the political ideology of that public figure is greater, and thus, the political ideology of that public figure should be thoroughly disclosed and verified. As long as there is any doubt or doubt thereon, it should be permitted to raise a question widely as long as it is probable, and a debate should be held open to the public. Before an accurate argument or public judgment is made, it should not be obstructed in the name of honorary protection of a public figure, and it should be taken place in the process of competition through a debate for pros and cons (see, e.g., Supreme Court Decisions 200Da37524, 2000Da37531, Jan. 22, 2002; 2000Da37531, Jan. 24, 2002; 2000Da37531, May 1, 2002).

(B) However, freedom is always subject to the responsibility. An attacking another political ideology with one’s own political ideology under the consideration and advancement between South and North Korea is always subject to the doctrine of responsibility. The attacking between South and North Korea continues to exist and the conflict between South and North Korea is very serious in terms of remuneration and advancement between South and North Korea. As it is highly likely to cause serious social division and social loss due to deterioration into an emotional defamation rather than a reasonable criticism that loses this and logical reasoning, it must be alerted at all times so that it does not lead to bad faith by not verifying facts and logic. This is the same as when looking at an inventive progress in the Decree of the Compensation and Progression, regardless of whether it is reasonable for the Decree of the Compensation and Progression, or when it is against the two sides of the Decree of the Jinjin, the Defendant is a legal person with more than 40 years experience and has a great social influence. In particular, in that one’s horse is likely to have a public opinion on public opinion and thus, it was necessary to pay more careful attention in speaking at an open seat.

Nevertheless, the Defendant, who mentioned the aforementioned false facts in the military and sold the victim as an anti-social person seeking the unification of the system of the Republic of Korea. This may not be regarded as a statement that is equivalent to the victim’s freedom of expression because it distortly distorted the victim’s political and moral basic ideology beyond the level of criticism or suspicion of the victim’s political ideology. Moreover, the Defendant’s statement is not merely an insulting speech or negative expression on the victim’s progressive tendency, but is based on concrete facts, and thus, is highly likely to lead to the public’s judgment as if it were proven that it was true. This is inconsistent with the objective of forming democratic public opinion through sound criticism and debate.

(C) If so, it is reasonable to view that the Defendant’s defamation statement against the victim was unlawful because it did not have any benefit to protect the victim by freedom of expression, but has a great harm to the victim’s social evaluation.

C. Sub-committee

Therefore, the defendant is recognized to have damaged the reputation of the victim by openly pointing out false facts.

4. Conclusion

Ultimately, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the appeal by the prosecutor is also justified, and the judgment below is reversed and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts

The remaining part of the above 3-Ga clause excluding the part that the victim exercised his right of non-to-land in personnel affairs to the defendant is the same.

Summary of Evidence

1. The defendant's oral statement in court;

1. The defendant's partial statement in the trial records of the court below

1. The statement of the witness T in the trial records of the court below

1. Partial statement of the suspect examination protocol of the defendant by the prosecution;

1. A complaint (No. 2015 type 85370);

1. Investigation report (a report on confirmation of the person who is responsible for the book of “U”), investigation report (a report on confirmation of the person who is responsible for the post-in Busan F secretary), investigation report (the time the person who filed a complaint completed the training center and the first south of J President, etc.);

1. Recording records;

1. Materials printed out by the complainant (D) legal aid rental, and materials printed out by the suspect (A) legal aid rental;

1. A CD in the video storage;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 307 (2) of the Criminal Act, Selection of Imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of favorable circumstances as seen in the following sentencing grounds):

Reasons for sentencing

Although the Defendant, as a person with a big social influence, should be more careful in speaking on a matter of public interest, he/she had the potential to devise the reputation of the victim who is a historical politics by publicly expressing the verified facts without responsibility, drawing a single conclusion, and openly expressing the public. The Defendant’s speaking, especially as a means of gathering the defects in the victim’s political ties, was used as a means of gathering the defects in the victim’s political ties, and it appears that the Defendant himself/herself could have sufficiently predicted such results.

However, the Defendant did not plan and prepare the victim’s political behavior in advance, but rather took account of the fact that the victim’s statement was made interest upon the victim’s request, namely, the victim’s statement was made at the time of the victim’s political behavior. The victim’s defamation statement was included in the personnel statement that “The victim had already fallen, and supported and audited the victim’s candidate at an open one time among the persons with the same political belief as the Defendant,” and that the victim’s political career was not immediately affected. Although the Defendant’s statement deviates from the scope of the victim’s freedom of expression, the Defendant’s excessive criminal punishment was determined as follows: (a) the Defendant’s age, career, character, environment, motive and circumstance of the crime, means and consequence of the crime; and (b) the records and all circumstances indicated in the instant case, including the circumstances after the crime.

The acquittal portion

1. Summary of the facts charged

The defendant is a person who served as the president of the S institution.

In fact, there is no negative opinion or disadvantage on the personal affairs of the defendant who was the chief prosecutor of the prosecutor's office at the time because the victim D worked as the secretary of the F secretary of the Office of B, around 2003, and the defendant was a prosecutor in charge of E.

Nevertheless, the Defendant, as a public security prosecutor at the time when he/she was in office F and K, made a statement to the effect that “the Defendant, as a public security prosecutor, engaged in activities against the victim to protect free democracy, was engaged in personnel affairs in a way of giving disadvantage to personnel affairs with a complaint against the Defendant, thereby impairing the honor of the victim by openly pointing out false facts.”

2. Determination

As seen earlier, it is difficult to view this part of the Defendant’s statement as a statement of fact to the extent that it constitutes a crime of defamation, even though it can be deemed that the Defendant raised a question about the fairness of personnel affairs at that time and expressed a complaint.

Therefore, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of a crime. However, as long as the defendant is found guilty of defamation in a single crime, it shall not be

Judges

Judge Maximum amount of money for judges

Judges White-in-law

Judges Park Young-young

Note tin

1) It is a clerical error in the office.

2) Since the issue is whether it constitutes a statement of fact prior to the falsity of the alleged fact, this part is logical to discuss in the preceding paragraph, but it was determined in this paragraph for convenience.

심급 사건

-서울중앙지방법원 2018.8.23.선고 2017고단4933

서울중앙지방법원 2020.8.27.선고 2018노2672

참조조문

참조판례

-대법원 2002. 12. 24. 선고 2000다14613 판결