[1] The meaning of “statement of fact” necessary to establish the crime of defamation and the method to distinguish whether a statement is a fact or an opinion / Even in cases where a expression used in criticism or writing of another person’s speech takes the form of describing specific facts that can be proven by evidence, whether the same legal doctrine applies to cases where a statement of fact does not fall under “statement of fact” as referred to in the crime of defamation, and in cases of expression used in criticism of another person’s opinion or its basis for claiming any opinion (affirmative)

[2] Whether it can be readily concluded that the assertion or opinion of the facts opposed to the past constitutes an element of “a false statement of facts” in the crime of defamation under the Criminal Act, solely on the ground that there was any fact-finding on the past historical facts, etc. through a civil judgment (negative in principle)

[1] In order to establish defamation, a statement of fact must be made, and the alleged fact should thereby be made to the extent that the social value or evaluation of a specific person is likely to be infringed. The expression of fact refers to a report or statement on the past or current facts in a specific time and spatially, and the contents of the expression can be proven by evidence. The determination should be made by considering the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression at issue was used, the social situation in which the expression was made, etc.

Even if the expression used in criticisming another person’s speech or writing takes the form of describing specific facts that can be proved by evidence to be seen as the outer page, considering the overall contents, etc. of the writing’s intent, logical flow, descriptive structure and method, the expression or writing in question from an average reader’s perspective falls under a de facto subjective opinion. However, if the expression is understood as using such expression as a means to emphasize one’s own opinion, it cannot be deemed as a statement of fact in the crime of defamation if it is understood as a statement of fact in the crime of defamation. Moreover, this legal doctrine does not differ in cases of expression used in criticism of another person’s opinion or its basis for asserting one’s opinion.

[2] In a civil trial, the court recognizes the facts in dispute between the parties in accordance with the principle of disposition authority, the principle of pleading, and the principle of free evaluation of evidence, and thus, it cannot be readily concluded that the fact-finding of a civil judgment constitutes a true fact at all times. Therefore, barring any special circumstances, the mere fact-finding of past historical facts, etc., for which the truth cannot be confirmed cannot be determined through a civil judgment, should not be readily concluded that the assertion or opinion of the facts opposed thereto constitute a constituent element of a crime of defamation under the Criminal Act. This is because unconstitutional legal interpretation that infringes on the freedom of expression guaranteed by the Constitution, such as free opinion, criticism, debate, etc. is not allowed.

[1] Articles 307 and 309 of the Criminal Act / [2] Article 21 of the Constitution of the Republic of Korea, Articles 307 (2) and 309 (2) of the Criminal Act

[1] Supreme Court Decision 97Do2956 Decided March 24, 1998 (Gong1998Sang, 1248), Supreme Court Decision 98Do2188 Decided February 25, 200 (Gong2000Sang, 885), Supreme Court Decision 2016Do19255 Decided May 11, 2017 (Gong2017Sang, 1325)

Defendant

Defendant

Law Firm Il-ho, Attorneys Kim Yong-nam et al.

Suwon District Court Decision 2017No1270 decided September 7, 2017

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.

1. For the crime of defamation to be established, a statement of fact must be made, and the alleged fact should thereby be made to the extent that the social value or assessment of a specific person is likely to be infringed (see Supreme Court Decision 98Do2188, Feb. 25, 200, etc.). The term “public allegation of fact” refers to a report or statement on the past or present facts in the specific past and spatial context, and the contents of the statement refer to what can be proved by evidence, and in distinguishing whether the statement is a fact or opinion, it refers to the ordinary meaning and usage of language, the context in which the statement is used, the possibility of proof, the social situation in which the expression was made, etc. (see Supreme Court Decision 97Do2956, Mar. 24, 1998, etc.).

Even if the expression used in criticisming another person’s speech or writing takes the form of describing specific facts that can be proved by evidence to be seen as the outer page, considering the overall contents of the writing’s intent, logical flow, descriptive structure and method, the language or writing in question, which is the object of the relevant writing and criticism, from an average reader’s perspective, the part in question is actually an ordinary reader’s subjective opinion. However, if the expression is understood as using such expression as a means to emphasize one’s own opinion, it cannot be deemed as a statement of fact in the crime of defamation (see, e.g., Supreme Court Decision 2016Do19255, May 11, 2017). Such a legal doctrine does not differ in cases of expression used in criticism of another person’s opinion or its basis to assert any opinion.

Meanwhile, in a civil trial, the court recognizes the facts in dispute between the parties in accordance with the principle of disposition, the principle of pleading, and the principle of free evaluation of evidence, and thus, it cannot be readily concluded that the fact-finding of a civil judgment constitutes a true fact at all times. Therefore, barring any special circumstances, the mere fact-finding of the past historical facts, etc., for which it is impossible to verify what the truth is, cannot be determined through a civil judgment, should not readily conclude that the assertion, opinion, etc. of the facts opposed thereto constitute a constituent element of a crime of defamation under the Criminal Act. This is because free opinion, criticism, debate, etc. on the judgment is unconstitutional legal interpretation that infringes on the freedom of expression guaranteed by the Constitution.

2. 피고인에 대한 이 사건 공소사실의 요지는, “피고인은 ○○△씨□□□□□□△◇◇공종중(이하 ‘이 사건 종중’이라고 한다)의 사무총장으로서 종중 이사회의 결의에 따라, 2014. 4. 10.경 및 2014. 5.경 두 차례에 걸쳐 ‘○○△씨의 적통’이라는 제목의 두 권으로 이루어진 책(이하 ‘이 사건 책자’라고 한다)을 각 출간하여 안내문과 함께 ○○△씨 각종 계파 회장, 임원들에게 배포하였다. 그런데 이 사건 책자와 안내문에는 ‘☆☆☆공 공소외 1이 ▽▽공 공소외 2의 맏형 또는 공소외 3의 장자가 될 수 없다는 사실이 입증된다’거나 ‘☆☆☆공이 실존인물이라고 볼 확실한 근거가 없는데도 그 후손들이 실존성을 조작하였다’는 등의 내용이 기재되어 있었다. 그러나 사실은 ☆☆☆공 공소외 1은 ◇◇공 공소외 4의 적장손이자 ▽▽공 공소외 2의 맏형이고, 그러한 사실은 종원지위부존재확인 사건에 관한 민사판결에서 확인되었다. 따라서 피고인은 위와 같이 비방할 목적으로 출판물에 의하여 공연히 허위의 사실을 적시하여 ○○△씨☆☆☆공파대정회 종원의 명예를 훼손하였다.”라는 것이다.

3. The lower court determined that: (a) in the civil trial, Nonindicted 1’s sentence of Nonindicted 2 against Nonindicted 3’s children, Nonindicted 4’s descendants, or Nonindicted 5’s children, there have been controversy over whether Nonindicted 6’s descendants or Nonindicted 1’s offset as Nonindicted 5’s children; (b) the instant clan, which made a joint election, as its joint election, was filing a lawsuit seeking confirmation of the existence of the existence of the place of origin abandonment against some of the members of the △△△△△ Party’s △△ Party’s council, which made the joint election of △△△ Party’s members of the △△ Party’s council; (c) in the above civil trial, the court determined that Nonindicted 1 was Nonindicted 3’s descendants, who purchased the above answers of △△ Party 3’s descendants; and (d) rejected all of the instant claims for appeal against the said clan Party’s members of the △△ Party’s non-indicted Party 1 independently and separately became final and conclusive; and (d) dismissed all of the appeal of this case’s appeal.

Furthermore, based on the following circumstances, the lower court determined that the crime of defamation by publication under Article 309(2) of the Criminal Act, which is the charge of the instant case, constitutes a false statement of facts, and that the Defendant was aware of its falsity, and determined that the crime of defamation by publication was established.

① Since there seems to be no special problem in the civil trial on the contents of the judgment based on the evidence and data collected and submitted by the instant clan, Nonindicted 1 is deemed to be the children of Nonindicted 3.

② Although the arguments of the instant clan were not accepted in civil trials, the Defendant produced and distributed the instant booker and a summary thereof, which are entirely inconsistent with the outcome of the judgment, and the Defendant also included the officers, etc. of the ○○○○○○ △△ C, who did not know the progress or result of the civil trial.

③ The primary purpose of the book of this case is to clarify the fact that Nonindicted 1 was Nonindicted 3’s children, not Nonindicted 3’s children, and Nonindicted 5’s children. However, in the process, Nonindicted 1 stated in the purport that there was no clear ground to deem that Nonindicted 1 existed in the process, and that the existence of Nonindicted 1 recorded in the intelligence, etc. is most distorted and that Nonindicted 1 did not exist any person, and that part of the descendants were an act of offsetting Nonindicted 1’s offset (off-off) for the purpose of making it difficult for Nonindicted 3 to enter ○○△△△.

4. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The record reveals the following circumstances.

① With respect to Nonindicted Party 1, some of Nonindicted Party 1’s supplementary reports and related documents were written differently with Nonindicted Party 3’s children, and some of Nonindicted Party 5’s children continued controversy over the set-off. Therefore, Nonindicted Party 1’s set-off is related to past historical facts, which cannot be clearly determined as true. In the civil trial instituted by the instant clan, the court held that the entry of the ○○○○○○○○ △△△△△ Group 5’s supplementary report, which was prepared by the descendants of both sides, was high probative value, based on the fact-finding that the entry of the ○○ △△△△ Group 5’s supplementary report, which was prepared by the descendants of both sides, is considered to have been high in probative value.

② The book of this case published two times consists of two books under the title “○○○○ △△”, and the publishing entity is the clan of this case, the defendant was written with the competent researcher. The title of title 1, title 2, is a change in the book, and the content of title 1 is also a change in the book, and the document is also a change in the book. The document is also written in the form of research similar to that of the thesis, such as the paper, which provides the basis for the specific analysis of why Nonindicted 1 cannot be a child of Nonindicted 3, and is written in the form of research, such as the paper, expression, etc. of the book, etc., which is attached and sealed by the author. Accordingly, it seems sufficient to fully grasp that the book of this case intends to present any subjective opinion through literature-based research, such as comparison and expression, etc.

③ In the facts charged, the part at issue is that the Defendant asserts that Nonindicted 1 could not become Nonindicted 3’s children on the grounds of the difference in the principal office, etc., and that it is merely an assessment that points out that the grounds for the counterclaim are weak. The expression, such as “No clear grounds to deem that Nonindicted 1 existed” can be understood as having no grounds to deem that Nonindicted 1 actually exists among the children of Nonindicted 3, rather than the assertion that Nonindicted 1 is not a real human being.”

Of course, it is reasonable to view that the Defendant used a decent expression, such as “the latter descendants of △△△ Public,” without disclosing any specific grounds, to have expressed the content that “the latter is a assertion that has no particular grounds.” However, it is reasonable to regard such expression as having expressed the contents of “the latter descendants’ assertion without any particular grounds.”

④ In particular, the Defendant appears to have introduced not only the position of the instant book but also the process of civil litigation and the contents of judgment, etc., which have been proceeding between the two parties, in detail, against the Defendant’s assertion by the instant book.

B. Examining the factual relations and the above circumstances acknowledged by the court below in light of the legal principles as seen earlier, the expression at issue in the book of this case constitutes a subjective opinion, opinion, or argument of the defendant. However, it is merely an expression in the form of concluding a specific fact in order to emphasize or express this, and such circumstance appears to have been sufficiently known from the perspective of average readers. Therefore, it is difficult to view that the expression at issue constitutes a statement of fact in the crime of defamation by publication of Article 309(2) of the Criminal Act solely on the grounds or the evidence submitted by the prosecutor.

C. Nevertheless, the lower court found the Defendant guilty of the instant facts charged solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the distinction between a fact and an expression of opinion in the crime of defamation and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

5. 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 Kim Jae-hyung (Presiding Justice)