The case holding that the act of distributing a document stating the fact that the defendant, the representative of the apartment, was suffering from defamation to the residents of the apartment in order to distort the suspicion of the illegality of Article 310 of the Criminal Act constitutes the reason for excluding illegality of Article 310 of the Criminal Act.

In a case where the defendant, as the representative of the apartment complex, distributed a document stating the fact that he was suffering from defamation to the residents of the apartment complex in order to clarify his suspicion of corruption, the case holding that the act of distributing the document constitutes grounds for illegality under Article 310 of the Criminal Act where the act of distributing the document alleged true facts solely for the public interest, in light of all the circumstances, including the following: (a) the contents recorded in the document correspond to objective facts in substitution; (b) the extent of the other party to whom the document was distributed is restricted; and (c) there is no expression that the method of expression is against the above suspected person.

Article 310 of the Criminal Act

Defendant

Defendant

Incheon District Court Decision 2003No2690 Delivered on February 5, 2004

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

We examine the grounds of appeal.

1. As to the facts charged under paragraph (1)

According to the reasoning of the judgment below, the court below acknowledged that the defendant damaged the reputation of the victim by openly pointing out facts such as voice, etc., which is 80,00 won imposed on June 29, 200. The defendant's above statement is not just a statement of specific facts and mere expression of opinion. In light of the fact that at the time of the defendant's statement about the grounds for disqualification of the same representative, the defendant's statement is not a statement of opinion, but a statement of facts and sexual violence were emphasized, it cannot be viewed that it constitutes a violation of the rules of evidence in light of the fact that 18 representatives, such as non-indicted 1, the representative of Dong and the management office, and the apartment resident, etc., are present at the meeting of the representative of the Dong-gu Incheon Metropolitan City (name omitted) apartment management office, and (name omitted) the victim refers to the victim while the representative of the Dong-dong apartment zone is being held, and the court below's determination of illegality is justified in the misapprehension of the legal principles as to defamation and the record.

2. As to the facts charged 2 and 3

A. Facts charged

피고인은 2001. 2. 26. 위 (단지명 생략)아파트 (동·호수 생략) 피고인의 집에서, "2000. 12. 10. 피해자와 공소외 2를 명예훼손으로 고소를 제기하였고 부평경찰서는 그들을 상대로 수사한바 혐의가 인정되어 2001. 2. 10. 기소의견으로 인천지방검찰청에 송치하였다는 고소사건처리 결과를 통지 받았으며 앞으로 두 사람은 민사상 위자료까지 부담하게 되어 매우 안타깝게 생각한다."는 취지가 기재된 안내문에 부평경찰서로부터 송부받은 공소외 2와 피해자에 대한 민원사건처리결과통지서 사본을 첨부한 다음, 그 무렵 위 아파트 (동수 생략) 1층 55세대의 우편함에 1부씩 집어넣어 배포함으로써 공연히 사실을 적시하여 피해자의 명예를 훼손하고, 2001. 7. 초순경 같은 장소에서, " 공소외 2를 명예훼손으로 부평경찰서에 고소를 제기하게 되었는데 경찰서 조사에서 자기는 피해자가 시키는 대로 하였다고 주장해 피해자와 대질한 결과 피해자가 자기가 시킨 일이라고 자백해서 그 간의 모든 일이 거짓임이 판명되어 형사입건과 재판까지 회부된 해괴한 일이 발생하게 되었다."는 취지가 기재된 우편물을 작성하고, 인천지검 2001형제13579호 피고인 (공소외 2의 성명 생략)에 대한 고소사건처분결과통지서 위에 "사건번호 : 위와 동일, 성명 : 피해자(피해자의 한자 성명 생략) ※→112동 전 동대표, 주민등록번호 : (생략), 2001고약8186호(벌금 70만 원)"이라고 기재된 문서를 덧붙인 후 이를 복사한 문서를 위 우편물에 첨부하여 그 무렵 위 아파트 동대표 회장인 공소외 3 등 17명에게 등기우편으로 발송함으로써 공연히 사실을 적시하여 피해자의 명예를 훼손하였다.

B. The judgment of the court below

According to the reasoning of the judgment below, the court below determined that the defendant's act constitutes a matter of interest and interest of apartment residents in light of the fact that the defendant has distributed notice and mail as stated in the above facts charged, and that the defendant did not inform the residents of the fact that he has lawfully performed his duties as a general director of the council of occupants' representatives, rather than notifying the residents of the fact that he has lawfully performed his duties, the defendant's act constitutes a matter of interest and interest of apartment residents. The court below rejected the defendant's claim that the distribution of each of the above documents constitutes a matter of public interest and thus the illegality is dismissed pursuant to Article 310 of the Criminal Act, and affirmed the judgment of the

C. The judgment of this Court

However, we cannot accept the above judgment of the court below for the following reasons.

(1) Article 310 of the Criminal Act provides that "When an act under Article 307 (1) of the Criminal Act is true and solely for the public interest, the act shall not be punishable." Thus, in order to not punish a person by openly pointing out a fact, the publicly alleged fact is related to the public interest, and an offender is also deemed to have publicly known the fact for the public interest, subjectively, and there is a reasonable reason to believe that the publicly alleged fact is true or that at least the actor believed the fact to be true, and that there is a reasonable reason to believe such fact." In this context, the term "fair fact" means a fact that is consistent with objective facts in detail (detailed) and it is unreasonable even if there is a little difference or somewhat exaggerated expression, and further, the term "public interest" includes not only the general interest of the State, society, and many people, but also the interest of a specific social group or members thereof, and it is also included in the context of 208 or 209 of the Criminal Act, and its motive or purpose can be compared to the expression in question.

(2) Examining the evidence duly admitted by the lower court in light of the records, the Defendant: (a) was a representative of the above apartment building ( several buildings omitted) from October 1, 1998 to September 30, 20; (b) was at least 20,000 senior citizens’ meeting to correct the problems of leasing part of the above apartment building without permission; (c) the senior citizens’ association and 3rd citizens’ association were at least 0:30 on May 19, 200; (d) the victim, who was affiliated with the senior citizens’ meeting, was issued a summary order containing the above apartment building’s signature as the management office, and (e) the Defendant was issued with the second senior citizens’ signature on the ground that there was a false accusation of the said apartment building; (e) the Defendant was released from the second senior citizens’ complaint and the second citizen’s signature on the ground that there was a false accusation of the said apartment building; (e.g., the Defendant was sentenced to suspension of the execution of the indictment on the ground that the two victims were at least 6:

(3) Examining these facts in light of the aforementioned legal principles, the contents of each of the above documents are mutually consistent with the objective facts in the part related to the victim, and the alleged facts constitute a representative of the above apartment complex ( several omitted) and ordered the suspicion that the defendant acting as an officer of the council of occupants' representatives did not commit fraud or corruption during his/her term of office, and the defendant distributed each of the above documents to the occupants in order to prevent the spread of internal divisions and conflicts among the occupants raised by the victim. Further, the defendant stated that each of the above documents was damaged by defamation and the summary order was issued, and the defendant's attachment of each of the above documents can only be seen as a means of infringing the victim's assertion that there was no doubt that the defendant's assertion that the above facts were false or unreasonable, and the defendant's act of distributing the above documents can only be seen as an objective act of infringing the public interest of each of the above apartment complex, and the defendant's act of distributing the defendant's new statement of motive or omission of the above facts, including the above facts charged, can only be seen as a part of the defendant's statement of the above indictment.

(4) Therefore, the court below rejected the defendant's assertion that the distribution of documents of paragraphs 2 and 3 of the facts charged solely pertains to the public interest and thus, dismissed the illegality pursuant to Article 310 of the Criminal Act, and found the defendant guilty of each part of the facts charged was erroneous by misapprehending the legal principles as to the grounds for excluding illegality in the crime of defamation, thereby affecting the conclusion of the judgment. Therefore, the ground of appeal assigning this error has merit.

3. Conclusion

Therefore, the part of the judgment of the court below as to the facts charged 2 and 3 of this case cannot be maintained any more. Since each of the above crimes was sentenced to a single punishment in relation to the remaining convictions and concurrent crimes under the former part of Article 37 of the Criminal Act, all of 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

Justices Kim Yong-dam (Presiding Justice)