2016Do14995 A. Special obstruction of performance of official duties

B. Special obstruction of performance

(c) Damage to special goods for public use;

(d) General traffic obstruction;

(e) Violation of the Assembly and Demonstration Act;

(f) Defamation

Defendant 1 and one other

Defendants and Prosecutor

Law Firm oriented and 2 others

Seoul High Court Decision 2016No506 Decided September 8, 2016

on March 25, 2021

The part of the judgment of the court below against Defendant 1 (including the part of the acquittal in the grounds) is reversed, and that part of the case is remanded to the Seoul High Court.

All of Defendant 2’s appeals and prosecutor’s remaining appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s ground of appeal on defamation part

A. The key issue is whether this part of the issue is a public figure, that is, a suspicion of public concern related to the official seal, constitutes defamation.

B. In a democratic country, through the free formation and transmission of public opinion, the democratic political order should be created and maintained by putting together the Majority Opinion, and thus, the freedom of expression and, in particular, the freedom of expression on public concerns should be guaranteed as an important constitutional right. However, inasmuch as an individual’s private legal interests should also be protected, the freedom of expression and the protection of personal rights should be determined by weighing and balancing the value obtained from the freedom of expression and the value achieved from the protection of personal rights in a specific case (see, e.g., Supreme Court en banc Decision 2014Da61654, Oct. 30, 2018).

In the crime of defamation, a statement of fact refers to a report or statement of facts in time or space in relation to a specific past or present fact, and can be proved as evidence, as a concept substitute for a statement of opinion that pertains to a value judgment or evaluation. Whether a report or statement is a fact or an opinion ought to be determined by considering the overall circumstances, such as the ordinary meaning and usage of language, possibility of proof, context in which the expression in question is used, social situation in which the expression was made, etc. (see Supreme Court Decision 2010Do17237, Sept. 2, 201). Where a statement of fact that lowers the social assessment of a victim was made by a method of citing a news report or a written statement or a written statement or a written statement by a third party, even if it was expressed in the form of a specialist or a converging statement, it shall be deemed that a statement of fact was made by suggesting the existence of a fact in light of the overall purport of the expression (see Supreme Court Decision 207Do53127, Nov. 27, 2008).

However, in the case of a full-scale public figure of the head of the public debate, it is necessary to assume criticism and suspicions, and to overcome such criticism and suspicions through piracy and re-brusation, and the freedom of expression on public concerns should be guaranteed as an important constitutional right as much as possible (see Supreme Court en banc Decision 2014Da61654, supra). Therefore, in the case of an expressive act that raises doubts about public concerns related to public figures, it is necessary to pay attention to evaluating it as a statement of fact by rhetort, unlike in the case of the general public.

If the establishment of defamation caused by an open statement, such as a press conference, etc., is at issue, the following should be taken into account: (a) whether the victim caused by the statement is a public figure or a private figure; (b) whether the statement pertains to a matter of public interest; (c) whether the statement concerns a matter of public interest; and (d) whether the statement concerns a matter of public nature or social nature that the citizen ought to know objectively; and (c) whether it contributes to the formation of public opinion or public debate on a matter of public nature or sociality; and (d) whether the public interest is in private sphere, there should be a difference between the public interest issue and the matter of public interest. If the expression in question is included in private sphere, the personality right of reputation, rather than the freedom of expression, should be given priority, but the restriction on the freedom of expression should be mitigated. In particular, if there is social meaning, matters related to the government's decision-making or performance of duties should always be subject to citizen surveillance and criticism; and (d) whether such surveillance and criticism can be a victim of defamation under the Criminal Act.

No appeal may be made (see, e.g., Supreme Court Decisions 2005Do3112, Oct. 13, 2006; 2010Do17237, Sept. 2, 201). Whether such expressions have considerably lost reasonableness as a malicious or extremely rush attack against a public official’s individual beyond the monitoring and criticism of a State agency ought to be determined by comprehensively taking into account the content and method of expression, the contents and public interest of suspicions, the degree of degradation of the public official’s social evaluation, the degree of effort to confirm the facts, and other surrounding circumstances (see, e.g., Supreme Court Decision 201Da40397, Jun. 28, 2013).

C. Summary of facts charged

The summary of this part of the facts charged is as follows. On June 22, 2015, Defendant 1 asked the press reporters, citizens, etc. to criticize the police's search and seizure of the office of non-indicted 1, and there is suspicion for the citizens of the Republic of Korea (which means to search and seize facts. I do not seem to have appeared for 7 hours in April 16, 200). I would like to confirm that the case was under suspicion? I would like to confirm that the case was not under narcotics. I would like to see that I would like to say that I would not have been able to say that I would not have been able to say that I would like to say that I would not have been able to say that I would have been able to say that I would not have been able to say that I would not have been able to say that I would not have been able to say that I would not have been able to say that I would not have been able to say that I would not have been able to say that I would have now.

D. The judgment of the court below

The lower court found the Defendant guilty on the following grounds.

The statement of this case is about the President's happiness at the time of the Sewol ferry incident, and there is a face of public concern about the issue of official review. However, in light of the negative influence of narcotics in our society, it cannot be deemed that Defendant 1's expression used by Defendant 1, in particular, constitutes scarcity or scarcity, and it cannot be deemed that Defendant 1 is a malicious and extremely scarcity, and thus, it cannot be evaluated that this constitutes a malicious and highly scarcity, and thus, it constitutes an area that can not be protected as freedom of expression. Despite the whole context of the statement of this case, the Defendant stated that the victim's statement of this case constitutes narcotics or Guns around the Sewol ferry, and therefore, the Defendant stated the fact that the victim was unable to perform his duties for seven hours after the Sewol ferry incident. The statement of this case constitutes a false fact, and there is no reasonable doubt that Defendant 1 could be applied to the crime of defamation without any reasonable doubt as to the falsity of Article 30 of the Criminal Act.

E. Supreme Court Decision

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

(1) According to the record, the following facts are revealed.

Defendant 1, as a co-chairperson of Nonindicted 3’s organization and a standing operating member of Nonindicted 1’s organization, has continuously held a large-scale assembly or demonstration from March 16, 2014 to April 16, 2014, and continued to identify the truth related to the Sewol ferry and to claim the punishment of a responsible person.

On April 16, 2014, the victim, who was the President, visited the Central Disaster and Safety Countermeasure Headquarters at around 17:15 on April 16, 2014, was constantly controversial on the victim’s specific criminal administration during the seven-hour period from the time when the issue was raised in the National Assembly around July 2014 to the time when the instant speech was made. At the time of the instant speech, there was no specific support for the narcotic drugs and Stockholm suspicions among three times.

On April 16, 2015 and April 18, 2015, Non-Indicted 1’s organization, including Defendant 1, without reporting an assembly or demonstration, held a memorial event, etc., for the Sewol ferryman on the following month. At least 10,00 persons were present at the memorial event and the subsequent promotion team, leading to a large-scale assembly or demonstration, and the police searched and searched Non-Indicted 1’s office from June 19, 2015. Defendant 1 took part in the police’s response method and seizure in response to the assembly or demonstration related to the NIS as of June 22, 2015. During that process, Defendant 1 took part in the briefing session to criticize the police’s response method and seizure. To criticize the search and to claim the truth-finding of the Sewol ferry.

Defendant 1’s assertion that: (a) the contents of Defendant 1’s statement of the fact of search and seizure on Defendant 1 and Nonindicted 1’s office are as follows: (b) the police using the caps and sprinks during the Sewol ferry-related assembly and demonstration; and (c) the office’s search and seizure is conducted despite having already been collected evidence at the assembly and demonstration site; (d) the instant statement; and (5) the Enforcement Decree should be discarded to reveal the truth of the Sewol ferry; and (6) the special committee on the fact-finding that the office’s search and seizure should be operated properly; and (c) the declaration that Nonindicted 1’s office will be equipped with the awareness of the fact-finding.

(2) Examining the above facts in light of the legal principles as seen earlier, it is difficult to readily conclude that Defendant 1 expressed a specific fact that “the victim did not perform his duties on the grounds that he was narcotic drugs or during the Stockholm injection,” in the process of expressing his opinion on the illegality of search and seizure of Defendant 1 and Nonindicted 1’s office and on the need to reveal the victim’s character. As such, it cannot be deemed that Defendant 1 expressed an expressive act by means of raising suspicions against public concern related to public figures, and thus, it cannot be deemed that it is considerably considerable as a malicious or highly rush attack against the victim, who is the President, and thus, cannot be punished as defamation. The reasons are as follows.

Defendant 1, without using a decent expression at all, presented suspicions between the three offices that the public raises, and expressed his opinion that he did not know about the facts, such as “I am in front,” and “I am the same as a chimney,” and that it will be see if it is revealed. In light of the context of the statement in this case through the overall contents of the press conference, Defendant 1’s expression that Defendant 1 would be able to confirm and search and seizure of the government’s office in the process of criticism of the police’s search and seizure of Nonindicted Party 1’s office, etc. is a suspicion against the victim, and it is deemed to be for emphasizing the illegality of the police’s search and seizure, and it is difficult to see that Defendant 1’s expression that it is a harsh fact that Defendant 1 presented.

This case’s speech is not clear in which the President did not respond properly in a state-wide disaster situation and for a considerable period of time, so it is necessary to clarify the specific criminal conduct in the past. “In the process of expressing opinions,” and as a whole, criticisms whether the duties of the President, who is a State agency, are appropriate, and thus, constitutes an expression that should be broadly guaranteed the freedom of expression.

At the time of the instant speech, the victim’s remarks were socially controversial at the time of the victim’s Sewol ferry call, and the facts that Defendant 1 tried to clarify that Defendant 1 was imprisoned at the instant speech are not “whether the victim was an individual who was narcotics or Switzerland,” but “whether the victim was carrying out proper state affairs at the time of the Sewol ferry call.” As such, the instant speech is highly related to public interest. Although there were no specific circumstances at the time of the instant speech, various suspicions, including narcotics and Bos, including narcotics, were widely spread among three times prior to the instant speech, but it is difficult to view that Defendant 1’s remarks were new suspicions. Moreover, since Defendant 1 did not have any special position to know about the victim’s movement for seven hours at the time of the instant speech, it may be deemed that the victim’s remarks did not accept the victim’s remarks as a fact. Therefore, it is difficult to evaluate Defendant 1’s social evaluation.

Defendant 1, as an opportunity to conduct a criticism of the search and seizure, stated that he continuously raised the issue once again, and it is difficult to view that Defendant 1 had made a statement or made a statement in this case to reveal the facts that the victim had made narcotics or Stockholms by pretending suspicions.

The expression "narcotics and Stockholm" can only be deemed as a malicious and aggressive expression against the victim's individual in light of the circumstances and context of the above specific remarks. However, in light of the above, it is difficult to readily conclude that the expression is an attack that has widely spreaded and used the suspicions among three in order to emphasize the opinion that "to the extent that it is not good to the extent that it is properly clarified about the conduct at the time," and that it is an attack that has considerably lost reasonableness.

(3) Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on the ground that the instant speech constitutes a statement of facts beyond the suspicion and a malicious and extremely rush expression against the victim, thereby significantly losing reasonableness. In so determining, the lower court erred by misapprehending the legal doctrine on the determination of illegality of the crime of defamation against public figures, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this part is with merit.

2. Determination on the remaining grounds of appeal by the Defendants

Of the facts charged in the instant case, the lower court convicted Defendants of the violation of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) due to the hosting of an unreported assembly or demonstration on April 16, 2015, and Defendant 1 on April 18, 2015. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on co-principal, etc.

3. Judgment on the grounds of appeal by the prosecutor

On July 24, 2014, the lower court deemed that there was no proof of crime regarding the violation of the Act due to the Defendants’ failure to host the unreported demonstration and the failure to perform the dispersion order, and found the Defendants not guilty of the former, and acquitted the latter. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules,

4. Scope of reversal

As seen above, among the judgment below, the part of defamation against Defendant 1 should be reversed, and the remaining conviction part against Defendant 1, which is concurrent crimes under the former part of Article 37 of the Criminal Act, should also be sentenced to a single punishment. As such, among the part of conviction reversed together, the part of conviction against Defendant 1, which is the primary charge of violation of the Act, which goes beyond the scope of reporting on July 24, 2014, which is the primary charge of violation of the Act, and which is the main charge of violation of the Act, is also reversed on July 24, 2014.

5. Conclusion

Of the judgment of the court below, the part on conviction against Defendant 1 (including the part on innocence) is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 2’s appeal and prosecutor’s remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok