[1] In the process of exercising the freedom of speech and press for religious purposes, whether it is permissible to describe the subject of another religion in a ludic manner or use a somewhat insulting and discomfortable expressions (affirmative with qualification)

[2] Whether the person bears the burden of proving “false perception” in the crime of defamation by publicly alleging false facts (i.e., prosecutor) and the standard for determining whether the alleged facts are false or not / Where the act of publicly expressing false facts cannot be punished as defamation under Article 307(2) of the Criminal Act

[3] The extent to which freedom of press and publication for religious purposes is permitted

[1] The purpose of our Constitution to protect by guaranteeing freedom of religion is not the object of a religion that a religion itself or a religious person is not a new religion but a citizen who kills a religion, i.e., a religious person, and criticism of a religion entails a certain degree of prejudice and stimulative expressions by nature. Thus, insult of a person who is subject to another religion does not immediately constitute defamation against a religious organization or believers that immediately depicts the subject of that religion. In the process of exercising the freedom of speech and publication for a religious purpose, even if the subject of another religion is expressed in a ludic manner or is used in a somewhat insulting and discomprehive expression, it should be permitted so long as it does not reveal a ludial sentiment against a person who kills a religious person or in itself, or it does not in itself likely to cause assault, threat, etc.

[2] Since the facts constituting the elements of a crime charged in a criminal trial are subject to the prosecutor’s burden of proof, whether it is a subjective element or an objective element, the fact was revealed that there was a fall of a person’s social evaluation in the case charged for defamation by a false statement of false facts under Article 307(2) of the Criminal Code, as well as that the alleged facts were not consistent with the objective truth, and that the Defendant knew that the alleged facts were false. In this case, when determining whether the alleged facts are false, the prosecutor must examine the overall purport of the alleged facts. If the material facts are consistent with the objective facts, it shall not be deemed that there was a little difference from the truth or somewhat exaggerated expression in the detailed facts.

In addition, even if a false statement of fact was made, if the false fact does not infringe on the social value or evaluation of a specific person, the crime of defamation under Article 307 of the Criminal Act is not established. If, compared with the case where an average person made a false statement of fact from the standpoint of society, it is reasonable to view that the social value or evaluation of the victim would be considerably infringed, or that there is no particular difference between the two, it cannot be punished as defamation by a false statement of fact under Article 307(2) of the Criminal Act.

[3] Even if the freedom of speech and press for religious purposes is guaranteed as high as well as the filing of an issue for verifying a religious meaning should be widely permitted, it should be ensured that the malicious gathering is not allowed without supporting the specific circumstances. Even if a certain circumstance is based on a specific circumstance, the method of expression should be selected on the basis of respecting the personality of the other party, and even if there is any matter subject to criticism, it is not permissible to insult by an ambiguous expression.

[1] Articles 20(1), 21(1) and (4) of the Constitution of the Republic of Korea, Article 307 of the Criminal Act / [2] Article 307(2) of the Criminal Act, Article 308 of the Criminal Procedure Act / [3] Articles 20(1), 21(1) and (4) of the Constitution of the Republic of Korea, Article 307 of the Criminal Act

[2] Supreme Court Decision 2008Do1421 Decided June 12, 2008 Supreme Court Decision 201Do1147 Decided June 10, 201 / [3] Supreme Court Decision 2000Da37524, 37531 Decided January 22, 2002 (Gong2002Sang, 522)

Defendant

Defendant

Law Firm Barun, Attorneys Park Jae-hwan et al.

Suwon District Court Decision 2012No566 decided October 18, 2012

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on defamation by publicly alleging false facts against the deceased non-indicted 1

A. Summary of this part of the facts charged and the judgment of the court below

Of the facts charged in the instant case, the summary of the defamation by publicly alleging false facts against the deceased non-indicted 1 is that the Defendant injured the honor of the instant religious organization by pointing out false facts with the following purport: (a) although the Defendant was well aware of the death of Non-indicted 1 and the developments leading up to the death of the victim ○○○○○○○○○○○○○○○○ Association (hereinafter “instant religious organization”), although Non-indicted 1’s believers knew of the fact that Non-indicted 1 1 died in a restaurant, Non-indicted 1 was fried at a restaurant and fried to a hospital but died of heavy morals.

The lower court found the Defendant guilty on this part of the facts charged, on the following grounds: (a) comprehensively taking account of Nonindicted 2’s statement, Nonindicted 2, a pastor of the instant religious organization, and the contents of “△△△△△△” and the newsletter published by the said organization, etc., it is difficult to view that the believers of the instant religious organization did not know the facts and circumstances of Nonindicted 1’s death; (b) Nonindicted 1, along with Nonindicted 1, on February 24, 1985, took place with ○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○, and died at the time of the next day at the time of the destination of Busan, after having died of the next day at the destination of the instant religious organization, by describing Nonindicted 1 in a ludic manner, thereby impairing the reputation of the instant religious

B. Judgment of the Supreme Court

However, we cannot accept the above determination by the court below for the following reasons.

1) Article 20(1) of the Constitution provides that “All citizens shall enjoy freedom of religion.” Freedom of religion includes freedom of mission to promote a religion that one’s own belief and to identify new believers. Freedom of mission includes freedom to criticize other religions or to recommend religious believerss. While religious propaganda and criticism of other religions are at the same time subject to protection of freedom of expression, Article 20(1) of the Constitution of the Republic of Korea on freedom of religion has the nature of special provisions regarding freedom of expression as to Article 21(1) of the Constitution on freedom of expression. In the case of speech and publication for religious purposes, the media and publication are highly guaranteed compared to other media and publication. In particular, the purpose of the press and publication is to criticize new believerss belonging to the same religious or religious group, and the freedom of mission includes freedom of mission to criticize other religious persons or to recommend religious believerss belonging to another religious group, the freedom of mission should be compared with that of other people’s freedom of expression and its degree of criticism to the maximum extent possible if it infringes on other people’s reputation and freedom of expression.

In addition, the Constitution’s guarantee of freedom of religion is not a subject of a religious belief that a religion itself or a religious person is not a fluent one, but a citizen who fluents a religion, namely, a religious person, and criticism on a religious person is accompanied by a certain degree of prejudice and stimulative expressions due to its nature. Therefore, insult on a subject of another religious person’s religion does not immediately constitute defamation against a religious organization or believers that immediately depicts the subject of that religious, but even if the subject of another religious person’s religious purpose was expressed in a ludic manner or used a somewhat insulting and discomprehive expression in the process of exercising the freedom of speech and publication for a religious purpose, it should be permitted so long as the subject of such an expression is not likely to depicated or cause assault, threat, etc. in itself.

On the other hand, since the facts constituting the elements of a crime prosecuted in a criminal trial are subject to the prosecutor's burden of proof, whether it is a subjective requirement or an objective requirement, the public prosecutor must prove that the alleged facts were revealed in the case prosecuted for defamation by a false statement of false facts under Article 307 (2) of the Criminal Act, and that the alleged facts were false because they were not consistent with the objective truth, and that the Defendant knew that the alleged facts were false. In such a case, in determining whether the alleged facts were false, the whole purport of the alleged facts should be examined. In a case where the material facts are consistent with the objective facts, even if there is a little difference from the truth or somewhat exaggerated expression in the detailed facts, it cannot be viewed as a false fact (see Supreme Court Decision 2008Do1421, Jun. 12, 2008, etc.).

In addition, even if a false statement of fact was made, if the false fact does not infringe on the social value or evaluation of a specific person, the crime of defamation under Article 307 of the Criminal Act is not established. If, compared with the case where an average person made a false statement of fact from the standpoint of society, it is reasonable to view that the social value or evaluation of the victim would be more considerably infringed, or that there is no particular difference between the two, it cannot be punished as defamation by a false statement of false facts under Article 307(2) of the Criminal Act.

2) Examining the aforementioned legal principles and records in light of the legal principles as seen earlier, first of all, it is difficult to view that the Defendant’s remarks made to the effect that Nonindicted 1 died of her own frigerants by drinking frigerants alone

Since there is no difference in the meaning of face value and face value in advance, it can be deemed as a kind of national water. The cerebrovascular is one of the causes or types of heavy wind, and is used in combination without distinguishing all among the general public. The disease immediately died at the same place and the next day after moving to a hospital cannot be said to have a significant difference in the degree of infringement or degree of evaluation of the victim’s social value or evaluation as a defamation by a false statement between the facts that the patient died at the same place and the following day after moving to the hospital. Furthermore, the evidence submitted by the prosecutor in the instant case alone is difficult to deem that the evidence submitted by the prosecutor was clearly proven to the extent that it is beyond reasonable doubt.

On the other hand, according to the evidence duly admitted by the court below, the believers is merely aware of the historical fact that Non-Indicted 1 died. However, it is difficult to view that the believers of the instant religious organization was aware of the meaning of the Defendant’s perception and delivery.

According to the evidence and records duly adopted by the court below, such as the testimony of Non-Indicted 2 of the first instance trial witness, the religious organization of this case can be seen as the fact that Non-Indicted 1 1 dysing out, dysing out, dysing out, dysing out, dysinging out, or gysing out, or using the expression of gysing, natural father,

In light of the size of organization, missionary work, volunteer service activities, and the contents of the doctrine, etc. asserted by the instant religious organization, the facts about Nonindicted Party 1 or his death constituted a public fact beyond the private sphere of the instant religious organization, and thus, the issue raising for public debate should be widely permitted as long as it is probable to do so, and defamation should not be obstructed in the name of defamation.

In light of this point, the overall purport of this part of the Defendant’s statement is to inform Nonindicted 1 of the following facts: (a) the Defendant, who has a doubt or opposing opinion as to the religious meaning and role of Nonindicted 1, expressed that Nonindicted 1 died as a human being, not a new one; and (b) raised suspicion as to Nonindicted 1’s use of Nonindicted 1 as an object of religion; and (c) the following circumstances revealed by the record, i.e., the Defendant’s statement was limited against his believers by the invitation, etc. of the members of the same religious group; and (d) the entire contents of this part of the statement, including this part, were to be criticized on the grounds that there are pro rata factors in the religious object or doctrine of the instant religious group from the point of view of the Defendant’s religious belief; and (e) urge him/her to provide objective information and urge him/her to pay attention, and urge him/her to prevent confusion, and thus, it is not new that the Defendant’s statement that he/she has a religious nature, as such, constitutes a fundamental act of criticism, or inappropriate.

Nevertheless, the court below held that this part of the Defendant’s statement constitutes a crime of defamation by publicly alleging false facts. In so doing, the court below erred by misapprehending the legal principles as to defamation by publicly alleging false facts under Article 307(2) of the Criminal Act, or by finding facts constituting a crime without any evidence. The Defendant’s ground of appeal assigning this error is with merit.

2. As to the ground of appeal on the defamation caused by the assertion of false facts against Nonindicted 3

Even if freedom of speech and press for religious purposes is guaranteed as high as well as that the institution of issue for verifying a religious meaning should be widely permitted, the method of expression should be the basis of respecting the personality of the other party, and even if there is any matter subject to criticism, the method of expression should be selected on the basis of respecting the other party’s personality, and even if there is any matter subject to criticism, insult is not permissible due to an ambiguous expression (see Supreme Court Decision 2000Da37524, 37531, Jan. 22, 2002, etc.).

In light of the following circumstances revealed by the record, namely, Nonindicted 1’s wife, i.e., Nonindicted 4 who completed the marriage report in 1958, Nonindicted 3 was a woman of Nonindicted 5 who asserted himself as his mother in the relationship with Nonindicted 1 before Nonindicted 3 appeared, and Nonindicted 1 left a marriage photograph with Nonindicted 3, etc., it cannot be said that there is no room for the Defendant to criticize the relationship between Nonindicted 1 and Nonindicted 3 from his religious perspective and to raise an objection.

However, inasmuch as the expression “competence” refers to the word “competent sexual relationship in light of the general sense of our society,” it is deemed that Nonindicted 1 and Nonindicted 3 repeated the above speech in a situation where there is no direct evidence to deem that Nonindicted 3 constituted the said intelligence relationship. Considering that there is no need to choose the above words in order to deliver the Defendant’s intent, it shall be deemed that the statement of false facts that undermine their social value or evaluation by suggesting the illegal sexual relationship between Nonindicted 1 and Nonindicted 3 beyond the scope of legitimate criticism.

In addition, in general, ethical assessment of subjects of religion is a result of the social assessment of the religious organization that new subjects of religion. This is not only Nonindicted 3, which could directly be deemed to infringe on social values due to such remarks, but also the act of impairing the honor of the religious organization of this case, which is the object of religion, of Nonindicted 3, who is an existing human being, and Nonindicted 3, which is the object of religion. In addition, in that the defendant's efforts to confirm the authenticity of the above matters which have not been clearly verified, without any strong effort to confirm and make it clear that they were true, and it is difficult to deem that there was a justifiable reason to believe that there was a false fact.

In the same purport, the judgment of the court below that convicted him of this part of the facts charged as to defamation due to the assertion of false facts against Nonindicted 3 is just, and there is no error of law by misapprehending the legal principles as to defamation due to the assertion of false facts under Article 307(2) of the Criminal Act.

3. As to the ground of appeal on the violation of the Copyright Act

The court below determined that the photograph of this case was a copyrighted work protected under the Copyright Act, since the photographer, at around 1979, taken by the deceased non-indicted 1, who opened the course of a show of a show that the photographer artificially fabricated and fabricated the body of his photograph, background setting, light quantity, carmera, etc., and included the identity and creativity of the photographer, and thus, it constitutes a copyrighted work protected under the Copyright Act.

In light of the relevant legal principles and records, the above determination by the court below is just, and there is no error of law by misapprehending the legal principles as to the creativity of photographic works.

4. Scope of reversal

For the foregoing reason, the part of the lower judgment’s defamation due to the assertion of false facts against deceased Nonindicted 1 should be reversed. This part of the lower judgment is related to the defamation of Nonindicted 3 as well as the part of the comprehensive crime that constitutes defamation against the instant religious organization. In addition, the part of the violation of the Copyright Act also constitutes a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, should be reversed.

5. Conclusion

The lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)