[1] Whether the same legal principle applies to the crime of defamation by publicly alleging false facts (=public prosecutor) and the burden of proof as to such crime (=the crime of interference with business by spreading false facts) and the crime of interference with business by fraudulent means (affirmative)

[2] The case holding that in a case where the defendant, the representative of Gap company, was indicted on charges of indicating through the Internet the fact that "the products produced and sold by Byung are products infringing the above patent right," and sending the same content certification to Byung's customers, it is hard to view that the above alleged facts were false

[1] In order to establish the crime of defamation by publicly alleging false facts through an information and communications network under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007), and defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, such publicly alleged facts should be deemed to be false, and the defendant must be aware of such false facts at the time of publicly expressing such facts. The prosecutor bears the burden of proving such false facts, namely, the criminal intent. The foregoing legal principle also applies where determining whether the act of publicly alleging false facts constitutes the crime of interference with business through fraudulent means under Article 314(1) of the Criminal Act.

[2] In a case where the Defendant, the representative of the Intellectual Property Trial and Appeal Board, was indicted on charges of expressing the fact that the invention jointly owned by Company A and Eul, was "the products produced and sold by Byung, are the products infringed upon the patent right," and sending proof of the contents to Byung's customers, the case holding that the lower court erred by misapprehending the legal principles as to "the crime of crime of crime of crime of crime of false accusation and false accusation," in light of the circumstances where it is difficult to readily conclude that the Defendant had known that the above trial decision had already become final and conclusive at the time of the crime, solely on the grounds that there was a trial decision on invalidation of the above patent invention, and there is no room to determine that Byung's products constitute the characteristic elements of the above patent invention, and there is no possibility to determine that the above facts were infringed upon the patent right.

[1] Articles 307(2) and 314(1) of the Criminal Act; Article 61(2) (see current Article 70(2)) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8778, Dec. 21, 2007); Article 308 of the Criminal Procedure Act / [2] Articles 307(2) and 314(1) of the Criminal Act; Article 61(2) (see current Article 70(2)) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8778, Dec. 21, 2007); Article 133(3) of the Patent Act

[1] Supreme Court Decision 94Do2186 delivered on October 28, 1994 (Gong1994Ha, 3171) Supreme Court Decision 96Do2234 delivered on February 14, 1997 (Gong1997Sang, 841) Supreme Court Decision 99Do4757 delivered on February 25, 200 (Gong2000Sang, 906) Supreme Court Decision 2007Do5836 delivered on January 30, 2009

Defendant

Defendant

Seoul Central District Court Decision 2009No551 Decided May 22, 2009

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

We examine the grounds of appeal as to the criminal intent.

1. In light of the fact that the patented invention of this case (patent No. 540261) with the name of "motor vehicle urgency" had already been issued an invalidation trial ruling at the time of each of the crimes of this case by the defendant, and that among the Internet flus products produced and sold by the victim non-indicted 1, "the composition of the use of brooms on the ground" alleged as infringement of the patent right of this case was in place on the part of the victim's registered height, the court below found that the defendant was aware or could have known that the patent of this case was not infringed on the patent of this case even before the decision on invalidation of patent becomes final and conclusive, the court below affirmed the judgment of the court below convicting the defendant of all of the charges of defamation and interference with the business of the victim by openly pointing out false facts that "the products infringing the patent of this case are the products infringing the patent of this case," and thereby impairing the reputation of the victim and obstructing the sales of the Internet flus by deceptive means.

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

In order to establish the crime of defamation by a false statement of false facts through an information and communications network under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007; hereinafter the same shall apply), and the crime of defamation by a false statement of false facts under Article 307(2) of the Criminal Act, it should be the fact that the statement is false, and the defendant must be aware of the fact that the statement of such fact is false, i.e., awareness of the fact that it is false, the prosecutor bears the burden of proof as to the criminal intention (see, e.g., Supreme Court Decisions 94Do2186, Oct. 28, 1994; 2007Do5836, Jan. 30, 2009). This legal doctrine applies to determining whether the act of expressing false facts constitutes the crime of interference with business through a false statement of false facts under Article 314(1) of the Criminal Act.

According to the records and the evidence duly admitted by the court of first instance as cited by the court below, with respect to the patented invention of this case, which was jointly owned by Hyundai Energy Co., Ltd. (hereinafter “Modern Energy”) and Non-Indicted 2, the Patent Tribunal No. 2006Da3189 on May 1, 2007, and a person with ordinary knowledge in the technical field to which the invention pertains (hereinafter “ordinary technician”) can easily make an invention by the patent registration number published in each Utility Model Gazette No. 27412 or 32340 on the basis of each registered patent application No. 2740 (hereinafter “Prior Invention 1,” and “Prior Invention 2,” and the defendant dismissed the facts of infringement of the patent right of this case, which became final and conclusive by the trial decision of the Patent Tribunal No. 2007Hu4724 on November 22, 207, which became final and conclusive, by examining the facts of infringement of the patent right of this case, which became final and conclusive.

Examining the aforementioned facts in light of the legal principles as seen earlier, patent rights are rights conferred upon the Defendant through the examination and registration of the Korean Intellectual Property Office, and the Patent Act provides that patent invalidation may be achieved through separate patent invalidation procedures. Barring special circumstances, patent owners believe their rights are lawful and effective. According to the records, the patented invention of this case adopted “the composition formed in the same direction as blicks formed on the ground surface and fixed interests.” On the other hand, it is difficult to readily conclude that each of the above prior inventions of this case’s 0-year patent application’s prior art type 2 did not constitute an element of “the first instance court’s prior art type No. 20-year patent application No. 200-year patent application No. 20-year patent application No. 20-year patent application No. 4 of this case’s patented invention as well as prior art type No. 9-year patent application No.

Nevertheless, the court below determined otherwise that the defendant was aware of false facts, which erred by misapprehending the legal principles as to the crime of publicly alleging false facts and defamation under Article 61(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. and Article 307(2) of the Criminal Act and the crime of interference with business through fraudulent means, and thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court 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 Jeon Soo-ahn (Presiding Justice)