[1] Whether a crime of false accusation is established when the contents of an accusation are somewhat exaggerated based on the facts (negative)

[2] The case holding that a crime of false accusation is established on the ground that even if the contents of a complaint are due to the fault or negligence of the complainant, it cannot be viewed as a simple exaggeration of circumstance, if the facts of complaint are not acknowledged in itself

[3] The case holding that the crime of defamation by publication constitutes a crime of defamation is established in a case where Gap provided materials of an article for the purpose of slandering A by expressing false facts to Eul, who is a newspaper reporter, while expressing the real name of an artist Eul, and Eul prepared and published a article with a true and misleading facts

[1] Article 156 of the Criminal Act / [2] Article 156 of the Criminal Act / [3] Article 309 (2) of the Criminal Act

[1] Supreme Court Decision 2002Do5939 Decided January 24, 2003 (Gong2003Sang, 754) Supreme Court Decision 2006Do6347 Decided May 29, 2008 / [3] Supreme Court Decision 93Do3535 Decided April 12, 1994 (Gong194Sang, 1551) Supreme Court Decision 2007Do4850 Decided December 27, 2007

Defendant

Defendant

Law Firm Gisung, Attorneys Lee Ho-won et al.

Seoul Central District Court Decision 2008No3396 Decided August 19, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the non-appeal

A. As to the assertion of violation of the rules of evidence

After comprehensively taking account of the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and found that the defendant's accusation was false, and found that the defendant was not guilty, on the ground that the dispatching country's face was caused by an injury to the defendant, such as a sudden blusium disease, etc. requiring treatment for about six months, because it was not acknowledged that the assault against the defendant was committed against the defendant at the time of the instant case.

In light of the records, the above judgment of the court below is just and acceptable. There is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

B. As to the misapprehension of legal principle

The crime of false accusation is established upon reporting a false fact to a public office or a public official for the purpose of having another person subject to criminal punishment or disciplinary action. Here, the term “a false report” means a conclusive or dolusent recognition and reporting that reported fact goes against the objective facts. In a case where the contents of a false report are not a false fact not based on any false fact but are somewhat exaggerated in the circumstance based on the fact, the crime of false accusation is not established (see Supreme Court Decision 2006Do6347, May 29, 2008).

However, as seen earlier, the Defendant’s complaint in this case does not constitute a simple exaggeration of circumstances, even though the Defendant did not understand the meaning of the general diagnosis stating that the Defendant is in need of medical treatment for six months even if he did not know the fact that he was assaulted by the sending country. This purport of the judgment below is just and acceptable, and there is no error of law in the misapprehension of legal principles as otherwise alleged in the grounds of appeal.

C. On the argument about the hearing

(1) As to failure to conduct on-site verification and adoption of an application for fact inquiry

According to the records, the court below adopted the defendant's application for verification of the site on the first trial date, and revoked it on the seventh trial date. However, in light of the records, the court below examined the records, and conducted verification of lux Hyundai Apartment Apartment Co., Ltd. (hereinafter "CCTV"), which was installed in the 109 dong-dong, Dongjak-gu, Seoul (hereinafter "the apartment of this case") and the elevator, and submitted a re-feud video at the Defendant's side and the prosecutor's side for the re-feudic image, respectively, and conducted the examination at the court below.

In addition, according to the records, the court below adopted an application for fact-finding to the fact-finding of the defendant on the first trial date, but revoked it on the seventh trial date. However, according to the records, it can be seen that the court of first instance has already adopted the intentions of the Youngdong Synae Hospital, such as the loan decoration, lighting iron and yellow-ray, and completed the examination as a witness. Therefore, even if the court below did not conduct on-site verification or did not accept the defendant's request for fact-finding, the above measures of the court below cannot be deemed unlawful since they belong to the reasonable deliberation method of the fact-finding court. There is no error in the misapprehension of the legal principle as

(2) Regarding the elevator CCTV image verification

In case where the court of the lawsuit has conducted an inspection on the court date, that is, the result of the examination, that is, the result of the judgment by the court by the error is the direct evidence, and that the inspection protocol stating the result of the examination is not evidence as

According to the records, the court below's verification of CCTV videos conducted as of January 21, 2009 may be found to have been conducted in the presence of all the judges, participating officials, the defendant, the prosecutor, the defense counsel of the defendant, and the agent of the dispatching country while proceeding with the sixth trial date at the video room of Seoul Central District Court No. 370, Seoul Central District Court. Therefore, even if the result of the verification was not recorded in the verification protocol, it cannot be said that there was an error of incomplete deliberation at the court below.

(3) As to the fact-finding on the result of the present CCTV original verification

기록에 의하면, 이 사건 아파트 현관 CCTV 동영상 원본 검증결과에 관하여 피고인이 신청한 사실조회에 대하여 이 사건 아파트의 보안업체인 주식회사 에이디티캡스, 이 사건 아파트 현관 CCTV 제조사인 주식회사 훠앤시스에 대한 사실조회만을 채택하고, 주식회사 다우리커뮤니케이션즈 및 카이스트 전산학과 교수 최광무 등에 대한 사실조회는 받아들이지 아니하였다. 증거신청의 채택 여부는 법원의 재량으로서 법원이 필요하지 아니하다고 인정할 때에는 이를 조사하지 아니할 수 있으므로, 원심의 위와 같은 조치가 위법하다고 할 수 없다.

(4) As to the additional review on the operation of current CCTV images

Examining the evidence admitted by the court below in light of the records, the court below's decision that the CCTV screen of this case cannot be deemed to have been operated is just and acceptable. Meanwhile, according to the records, the court below received the main body of CCTV devices installed in the present apartment site and the hard disk and completed verification of the CCTV screen. Accordingly, there is no error of incomplete deliberation as otherwise alleged in the ground of appeal concerning the operation of the CCTV screen of this case.

2. As to defamation by publication

"Purpose of slandering a person" under Article 309 (2) of the Criminal Act requires the intention or purpose of a question. Whether a person has the purpose of slandering a person is due to the act of a person who provided an article, and as long as the article was inserted in a newspaper, the degree of infringement of reputation that may be damaged or damaged by the expression should be determined by comparing and considering the contents and nature of the relevant publicly alleged fact, the scope of the other party who published the relevant fact, and the method of expression itself (see Supreme Court Decision 2007Do4850, Dec. 27, 2007). In addition, in the event that materials of a false article are provided to a newspaper for the purpose of slandering a person, whether the article is published in the newspaper belongs to the authority of the editor of the relevant newspaper. However, as long as the article was inserted in the newspaper, the article materials of the newspaper are attributable to the act of a person who provided an article, the person who provided the article materials can not be exempt from the crime of defamation as provided for in Article 309 (2) of the Criminal Act (see Supreme Court Decision 35Do49353.

In full view of the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that, as long as the Defendant provided materials of the instant article for the purpose of slandering the victim by stating false facts that the Nonindicted Party, the reporter of sports Seoul.com, was injured by assaulting the real name of the host country, an artist, and thereby causing the victim to be injured, the lower court could not escape the Defendant from liability for the crime of defamation by publication, as long as the content of the article is true and the article was published under the Defendant’s consent.

In light of the above legal principles and records, the above judgment of the court below is just. There is no error in the misapprehension of legal principles as to defamation by publication, or misconception of facts due to violation of the rules of evidence, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)