[1] Whether the part of Article 16 (7) of the former Registration, etc. of Periodicals Act recognizing the right to claim a counterargument report by the State or a local government is unconstitutional (negative)

[2] Whether Article 16 (7) of the former Registration, etc. of Periodicals Act provides the head of an institution, organization, institution, or organization with no capacity to be a party to the right to claim a counterargument report is unconstitutional (negative)

[3] The case holding that the Government Information Agency has the ability to be a party in the case of a counterargument report claim

[4] The standard for determining whether the original report, which is the subject of the counterargument, is a factual assertion or a simple expression of opinion in the claim for a counterargument report

[5] The case reversing the judgment of the court below ordering a press company to make a counterargument report on the premise that the above original report contains factual arguments, although the contents of the press report, which is the subject of the counterargument, is an expression of a simple opinion of the press company in light of all circumstances

[1] Article 16(7) of the former Registration, etc. of Periodicals Act (amended by Act No. 7369 of Jan. 27, 2005) provides that the State, a local government, the head of an institution, or an organization may claim a counterargument report on behalf of the relevant institution or organization on behalf of the press. However, in cases where the press infringe on a specific person’s general moral right, the right to claim a counterargument report has the constitutional ground of guaranteeing the press as a system for discovering truth and forming correct public opinion. In light of the purport of the right to claim a counterargument report, the State or a local government also requires minimum social approval or trust in carrying out the tasks and functions of the Constitution and statutes, so that the State or a local government may not be deemed to have infringed on the right to claim a counterargument report, such as the right to claim a counterargument report, to which the State or a local government has an individual relation, and thus, can not be deemed to have violated the right to claim a counterargument report directly and indirectly, but may not be deemed to have denied the State’s right to claim a counterargument.

[2] Article 16(7) of the former Registration, etc. of Periodicals Act (amended by Act No. 7369 of Jan. 27, 2005, the Act on the Freedom of Newspapers, etc. and Guarantee of Their Functions provides that "the State, a local government, the head of an institution, or an organization may claim a counterargument report on behalf of such institution or organization on behalf of such institution or organization." Under the general theory of the Civil Procedure Act, an institution or organization whose capacity to claim a counterargument report is not recognized can also be recognized as a party's ability to claim a counterargument report by recognizing the party's ability to claim it. However, an institution or organization whose capacity to claim a counterargument report is not recognized as a party's ability can be identified as a group of activities in a social society, and accordingly, it is common reality that such institution or organization becomes a subject of a counterargument report, separate from the subject to rights and obligations under the Public and Private Act, if such institution or organization has an individual relevance in the press's factual argument, it is not necessary to grant such institution or organization's right to directly or organization's right to claim for a counterargument.

[3] The case holding that since Article 16 (7) of the former Registration, etc. of Periodicals Act (amended by the Act on the Freedom of Newspapers, etc. and Guarantee of Their Functions (amended by Act No. 7369 of Jan. 27, 2005) stipulates that the head of an institution or organization may claim a counterargument report by "representative", the representative of the institution or organization who is a natural person separate from such institution or organization does not have individual relevance to factual argument about the business of the institution or organization, he may claim a counterargument report in his name, the Government Information Agency has the ability to claim a counterargument report as a state administrative agency as provided by Article 24-2 (1) of the Government Organization Act.

[4] In a case where the right of reply is claimed, a way to distinguish whether the original report, which is the subject of the right of reply, is a factual assertion or a simple expression of opinion, may be determined as a factual assertion if the original report is objectively verifiable, clear, and historical and externally expressed, including the external process or condition of recognition. However, such abstract standard of determination is not always clear, and it is common to be reported in a mixed manner with factual arguments and comments. As such, the standard of determination cannot be deemed as one-way. In addition, not only the objective content of the original report, but also the ordinary meaning of the words used on the premise that the general public accepts the original report with ordinary care, the overall flow, and the method of linking the original report, but also the social flow that the original report contains the context or background, and the overall increase of the original report to the reader. If the original report is a factual assertion or an expression of opinion, it can only be seen that the original report is a factual assertion or a new expression of opinion is not a way to express an opinion about the original report, but also a specific way to express such opinion about the original report.

[5] The case reversing the judgment of the court below ordering a press company to make a counterargument report on the premise that the above original report contains factual arguments, although the contents of the press report, which is the subject of the counterargument, is an expression of a simple opinion of the press company in light of all circumstances

[1] Article 16 (7) of the former Registration, etc. of Periodicals Act (amended by Act No. 7369 of Jan. 27, 2005) (see Articles 14 (3) and 16 of the current Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports) and Article 21 of the Constitution / [2] Article 16 (7) of the former Registration, etc. of Periodicals Act (amended by Act No. 7369 of Jan. 27, 2005) (see Articles 14 (3) and 16 of the current Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports), Articles 11 (1), 21 and 27 (1) of the Constitution / [3] Article 16 (1) of the former Registration, etc. of Periodicals Act (amended by Act No. 7369 of Jan. 27, 2005; / [16 (3) of the current Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports

Government Information Agency

Dongil Co., Ltd.

Seoul High Court Decision 2001Na67203 delivered on July 25, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. Regarding ground of appeal No. 1

(1) As to the assertion that it is unconstitutional to judge the system itself and the case of the right to claim a counterargument report in accordance with the provisions on the procedure of a provisional disposition

Article 16 (1) of the former Registration, etc. of Periodicals Act [this Act is valid until July 27, 2005, before the enforcement of the Act on the Freedom of Newspapers, etc. and Guarantee of Their Functions (Act No. 7369, Jan. 27, 2005) and the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports (Act No. 7370, Jan. 27, 2005), but Article 2 and Article 3 of the Addenda of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports (hereinafter referred to as "regular law") recognizes the right to file a claim for a counterargument report with a person who has suffered damage by a factual assertion published in a periodical, and Article 19 (4) of the same Act provides that the above claim shall be tried in accordance with the provisions on the provisional disposition procedure under the Civil Execution Act.

In addition, with respect to the constitutionality of the above-mentioned provision on the right to claim a counterargument report and the right to claim it in accordance with the provisional disposition procedure under the Civil Execution Act, although it was prior to the amendment of the law applicable to this case, the Constitutional Court declared the constitutionality of the provision (the Constitutional Court Order 89HunMa165 delivered on September 16, 191, Constitutional Court Order 95HunBa25 delivered on April 25, 1996), and the nature of the system is not different from the positive law, so the above argument on the constitutionality is without merit.

(2) As to the assertion that the recognition of the right to claim a counterargument report to the State and a local government under Article 16 (7) of the Act is unconstitutional

Article 16 (7) of the Act provides that the state, local government, institution, or organization may claim a counterargument report on behalf of the institution or organization with respect to the relevant business.

In addition, the State and local governments are the parties who are obligated to guarantee the fundamental rights and are not the parties to whom they are the parties, and the right to claim a counterargument report is based on the original provisions of Articles 10, 17, 21 (1) and (4) of the Constitution of Korea, as pointed out in the grounds of appeal.

However, the person who is obligated to guarantee the fundamental rights is not a subject of all the rights or systems coming from the fundamental rights, and whether it is unconstitutional to recognize such status to the State or local governments is a separate issue.

However, the right to claim a counterargument report has a constitutional ground for guaranteeing the press as a system for discovering truth and forming correct public opinion, along with the request of the press to guarantee the personal rights that the injured individual can provide a prompt and appropriate means of defense in case the media organization infringes on the general personal rights of a specific person.

In light of the above purport of the right to claim a counterargument report, it is necessary for the State or a local government to grant the minimum social recognition or trust in performing the tasks and functions given to them under the Constitution and statutes. Therefore, it cannot be denied that there is a public interest to obtain or maintain such social trust in itself by providing a counterargument against factual assertions by the press.

On the other hand, the State, etc. does not exercise the right to claim a counterargument report in a way that directly executes the law as the subject of administrative authority, but it is limited to realizing the right in accordance with the same requirements and procedures as other holders of the right to claim a counterargument report, as well as to realize the right in accordance with the same requirements and procedures as other holders of the right to claim a counterargument report. Since there is a reasonable limit in the scope of the counterargument, such as guaranteeing the freedom of speech on the expression of value judgment, such as statement of opinion, and allowing to refuse to publish a counterargument report in certain cases, it cannot be concluded that the limit on the freedom of speech in accordance with the recognition of the right to claim a counterargument report is higher than that of the

In addition, in a lawsuit claiming a counterargument report filed by the State or a local government and presided over by a judge, it cannot be deemed that the above legal provision infringes on the press’s constitutional freedom of speech, the right to equality, or the right to a trial.

Therefore, the above argument that it is unconstitutional to recognize the right to claim a counterargument report to the State or a local government under Article 16 (7) of the Act cannot be accepted.

(3) As to the assertion that granting a party to the right to claim a counterargument report to the head of an institution, organization, institution, or organization with no party ability under Article 16(7) of the Act is unconstitutional.

Article 16(7) of the Act provides that "The State, a local government, the head of an institution or an organization may claim a counterargument report on behalf of the institution or organization in relation to the relevant business," and the general theory of the Civil Procedure Act provides that an institution or organization whose capacity to claim a counterargument report is not recognized is expanding the ability of the party by recognizing the ability of the party.

However, an institution or organization which is not recognized as a party ability pursuant to the provisions of the Civil Procedure Act, etc. can be identified as a single activity unit in a social life, perform its independent function under the public and private law, and accordingly, in a press report, it is common reality that the institution or organization becomes the object of a press report, separate from the subject to whom the rights and obligations under the public and private laws accrue. In addition, if these institutions or organizations have individual relevance to the press's factual assertion, it cannot be denied that the institution or organization has public interest and need to directly exercise the right to claim a counterargument report in order to obtain or maintain the social trust of itself as seen above in the State and local governments, and rather than having the holder of the right behind such institutions or organizations exercise the right to claim a counterargument report, it is more direct and efficient to directly exercise the right to claim a counterargument report by granting the party ability to the said institution or organization.

Meanwhile, even if an institution or organization gives a party ability in relation to the claim for a counterargument report to an institution or organization, in particular, a State institution or organization, or an organization under public law, the status of such institution or organization does not essentially differ from any other subject of the claim for a counterargument report. Therefore, the relationship with the press organization, which is the other party, is identical to that of the State or local government, and is not subject to any special disadvantage to

Rather, from the point of view of the system of guaranteeing personal rights, which is the essence of the right to claim a counterargument report, as well as the system of discovering truth and forming a correct public opinion, it would be reasonable and legitimacy to grant institutions or organizations the ability of a party.

Therefore, we cannot accept the above argument of unconstitutionality.

2. Regarding ground of appeal No. 2

Article 16(7) of the Act provides that the head of an institution or organization may claim a counterargument report by "representative" and its representative, who is a natural person separate from such institution or organization, shall not have an individual relation to a factual assertion about the business of the institution or organization. In light of the fact that the institution or organization does not have an individual relation to a factual argument, the institution or organization may make a claim for a counterargument report in its name.

According to Article 24-2 (1) of the Government Organization Act, "The Government Information Agency shall be established under the jurisdiction of the Prime Minister to take charge of the affairs concerning public relations at home and abroad, coordination of public relations affairs within the Government, gathering public opinion on government affairs, and government announcements." Since it can be sufficiently recognized that the applicant is performing the above affairs as a national administrative agency, the applicant is clearly deemed to fall under the "agency" under the provisions of the Act, and therefore, the applicant has the ability to be a party in the claim for a trial of counterargument reports.

Therefore, the judgment of the court below in accordance with the above legal principles is just, and the ground of appeal is without merit.

3. As to the third ground for appeal

(1) The right to claim a counterargument report becomes constitutional because the subject of the counterargument is limited to a factual assertion (see Constitutional Court Order 89HunMa165, Sept. 16, 1991). In the case of the claim for a counterargument report, it is very important to distinguish whether the original report (the original report; hereinafter, referred to as the “original report”) which is the subject of the counterargument is a factual assertion or a simple expression of opinion.

In addition, if the motive, purpose, psychological condition, etc. of the original report, including the process or condition externally recognizable, is displayed externally, it can be determined as a factual assertion in the way to distinguish a factual assertion from an expression of opinion.

However, such abstract standard of judgment is not always clear, and it is common in the form of a mixture of factual arguments and comments, etc., so that the standard of judgment itself cannot be deemed as a single, not only the objective content of the original report, but also the ordinary meaning of language and words used on the premise that the general reader takes part in the original report with ordinary care, as well as the ordinary meaning of language and words used on the premise that the general reader takes part in the original report with ordinary care, and also the social flow that forms a broad context or background in which the original report is published, and the overall impression that is given to the reader should

In addition, whether the original report is a factual assertion or an expression of opinion can be confirmed through a comparison of the original report and the counterargument report seeking a publication on such original report. If the original report and the counterargument report are either informed of different specific progress or describing situations, the original report shall be deemed a factual assertion. However, if the original report are not to know a new situation but to reconform the original report, it shall be deemed that the original report is merely an expression of opinion.

On the other hand, if the original report refers to a report citing a third party's opinion, if the subject of the claim for a counterargument report is whether the third party has actually expressed such opinion, it shall be deemed a factual assertion. However, if the original report reports the third party's opinion by its own opinion, and if the purport of the counterargument report is not to raise a question as to whether the third party has actually expressed such opinion, the original report shall not be deemed a method of expressing his opinion.

(2) According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and maintained the judgment of the first instance court ordering the respondent to publish a counterargument report as stated in the judgment of the court below, on the basis of the judgment of the court below, since the report of this case 1 and 2 of East Asia included a factual assertion that "the Minister of Government Information and Communications Agency has a right to claim against the respondent to report his counterargument report, and there is a compelling reason to criticize all reports against the "unfair motive" of the investigation into a press company, and criticizes all reports as biased reports, interference with the performance of government affairs, and interference with the division of state affairs."

(3) However, we cannot agree with the above determination by the court below for the following reasons.

Examining the record, the applicant made four (10) days from June 23, 2001 to July 2, 2001, a statement to the effect that some press reports related to the investigation into a media company are biased and distorted reports to rationalize their tax corruption, and that the government is harming and criticizes the government. In this regard, the respondent published the first report of this case as of July 4, 2001, and published the article related to the remaining names except the name of June 28, 2001, on the same day, on the same day.

However, in the case of the report 1 of this case, the respondent paid attention to the fact that the applicant has published the same purport four times in a relatively short period of time, and reported such fact and a summary of the statement. These names printed the applicant's assertion that they are the legitimate exercise of the right of reply at the government level. Then, the report citing the response or point of view of the "government-day" and the "related person" as the main article in the form of citing the response or point of view as "whether it is inappropriate to see the name on June 28" and "whether it is inappropriate to see the name on June 28," and the report 2 of this case contains some contents "in this way, the report and criticism of this media is distorted, distorted, and it is an obstacle to the performance of state affairs or the promotion of division of state affairs."

However, in light of the overall increase and context of the original report, the report of this case 1 does not appear to have been an expression of opinion or comment, but rather to have a fundamental core point of the report that the applicant itself or the applicant’s repeated statement of his or her name deviates from his or her business scope. Rather, it appears that the applicant expressed his or her opinion or request that it is inappropriate for the applicant to present his or her name in the form of citing a third party’s speech, or that it would be better for the applicant to express his or her opinion or criticism that it is not due to the government’s official name in light of the government’s authority, or that the report of this case 2 is an article that constitutes an expression of opinion or comment by itself, and it is reasonable to see that the respondent who was subject to tax investigation at the time of the report and its contents in question evaluated his or her own opinion in relation to the press report and criticizes the contents of the report. This is not an objective reply to the reporter’s name or criticism of the contents of the report 3rd report.

Nevertheless, the judgment of the court below ordering the respondent to make a counterargument report on the premise that each of the reports of this case includes "the factual assertion" which can prove the authenticity of the report of this case, is erroneous in the misapprehension of legal principles as to the meaning of "the factual assertion" as a requirement for recognizing the right to claim a counterargument report. Thus, the ground of appeal pointing this out has merit.

4. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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 Lee Kang-tae (Presiding Justice)