The case holding that the defendant's act of creating a leaflet to criticize the credibility of his testimony and attaching it to the glass windows, etc. at the entrance of his office cannot be deemed to constitute a crime of defamation or crime of interference with business against the lawyer.

The case holding that the defendant's act of attaching a leaflet cannot be deemed to constitute defamation or crime of interference with business on the ground that it is merely a defendant's opinion or value judgment, and it cannot be deemed that the act of attaching a leaflet as above constitutes a crime of defamation or crime of interference with business on the ground that the defendant's act of attaching it cannot be deemed to constitute a crime of defamation or crime of interference with business.

Articles 307(2) and 314(1) of the Criminal Act

Defendant

Defendant

Publicity Cost

Attorney Kim Hyun-ia

Cheongju District Court Decision 2004DaMa888 delivered on September 8, 2004

The judgment of the court below is reversed.

The defendant shall be innocent.

1. The judgment of the court below

A. Summary of the facts charged

On April 2, 2004, when the defendant appeared as a witness in the Cheongju District Court case No. 2002Gahap499, the defendant was engaged in agriculture. However, from May 10, 2004 to 18:20 the following day, from around 11:00 on May 11, 2004 to 18:00 on May 11, 2004, the defendant made an application for permission to change the above provisions of the Criminal Act to 3-3 in front of the entrance of the victim's office located in the Cheongju District Court No. 3-3 office, "the victim disregarding human rights", "the victim is a witness and the 3-3-party witness", "the victim is parked in front of the above 4-party hearing", "the victim is a witness and the 1-party witness's entrance and the 3-party witness's amendment to the Criminal Act by openly pointing out his false provisions of the Criminal Act to the 3-party's entrance and the 4-party."

B. Summary of the judgment of the court below

Comprehensively taking account of the evidence revealed, the lower court found the Defendant guilty of committing the crime that the Defendant’s reputation was damaged by openly pointing out facts on the above vehicle, etc. so that many and unspecified persons can be seen, and at the same time by spreading such facts, interfered with the victim’s attorney-at-law’s practice, and punished the Defendant by applying Articles 314(1), 313, and 307(1) of the Criminal Act.

2. Summary of grounds for appeal;

First, the crime of interference with business is established by spreading false facts, or by deceptive means or by force. The crime of defamation under Article 307(1) of the Criminal Act is established by publicly pointing out facts. The court below recognized the establishment of defamation by factually pointing out the Defendant’s act of attaching the former content as above, and recognized the crime of interference with business by spreading false facts, and further, recognized the establishment of the crime of interference with business by spreading false facts, and punished the Defendant for the crime of interference with business by spreading false false facts with which punishment is more severe. The court below erred by misapprehending the legal principles on the crime of interference with business, or by misapprehending the legal principles on the crime of interference with business.

Second, the above mentioned contents of the leaflet prepared by the defendant cannot be deemed as "false fact" or "fact" as referred to in the crime of interference with business or defamation, and rather, it is nothing more than the content of personal value judgment on the victim who is an attorney-at-law. Therefore, it is erroneous in the misapprehension of legal principles as to interference with business and defamation.

Third, the defendant prepared and attached a leaflet of the above contents for the public interest and the act of defamation against the victim of the defendant is dismissed by Article 310 of the Criminal Act, and thus, even though the crime of defamation is not established against the defendant, the court below found the defendant guilty of this part of the crime of defamation is erroneous in the misapprehension of legal principles as to the reason for excluding illegality as provided in Article 310 of the Criminal Act.

3. Determination

A. Ex officio determination

As seen earlier, the prosecutor prosecuted defamation by applying Article 314(1) of the Criminal Act to the prosecution but applied for changes in the indictment to Article 314(2) of the Criminal Act, and applied for changes in the indictment to the applicable provisions of the same Act to the trial court, and permitted by its members, thereby changing the part of the crime of defamation to be tried. As such, this part of the judgment of the court below is no longer maintained (the next decision is also made as to the part of defamation and the grounds for appeal as to the crime of interference with business due to false facts

B. Facts of recognition

According to the evidence and records duly admitted by the court below, the defendant was present at the Cheongju District Court Decision 2002Gahap499 on April 2, 2004 as a witness in the case of compensation for damages of the same court 2002Gahap 499 on the plaintiff Park Jong-tae et al., and the victim's attorney at the defendant's attorney at the above case later testified on April 2, 2004 as witness at the court's discretion on the defendant's testimony on April 2, 2004. However, the plaintiff prepared the witness examination protocol in advance at the attorney's office and led the plaintiff to give testimony at his attorney's office. The defendant did not have any contact with the defendant in advance, the contents of the plaintiff's witness examination were substantially defective. Since the defendant did not pay excessive debts to the defendant for the defendant, it appears that he did not request the plaintiff to present the defendant's testimony at the auction or the defendant's testimony in collusion with the defendant's attorney at the bar's office, it did not change the contents of his testimony.

(c) whether the alleged or circulated content is a fact;

The expression of fact in the crime of defamation refers to a report or statement of facts in a specific past or present, time and space, and the contents of the statement are verifiable by evidence, and in distinguishing whether the statement for determination is a fact or an opinion, it shall be determined by considering the overall circumstances such as ordinary meaning and usage of language, possibility of proof, the context in which the speech in question was used, social situation in which the expression was used, etc. (see Supreme Court Decision 97Do2956 delivered on March 24, 1998), and the dissemination of false facts in the crime of interference with business by prisoners of war caused by false facts is spreading facts that do not conform with objective truth or present (the dissemination of false facts is included in the past or present facts when it is possible to prove it by evidence). The defendant's simple opinion or value judgment does not constitute this (see Supreme Court Decision 82Do2866 delivered on February 8, 1983).

As seen in the above facts, the defendant's attachment of the former part of this case to his vehicle and the entrance door door of the attorney's office was made by the means of demanding explanation of the defendant's character by considering that the contents of the preparatory documents prepared by the victim and submitted to the full bench in relation to the credibility of the defendant's testimony about civil cases damaged the defendant's character. In this content, "the victim disregarding the human rights of the witness" and "the victim disregarding the farmer" are merely an expression of the defendant's pure opinion and cannot be determined by whether it is false or not, and "the victim's attorney will be a fake to a trial with the witness", "the victim will be a fake to the witness in advance," and "the victim will be asked for explanation of the witness's fake to the witness" are merely an expression of the defendant's pure opinion, and in light of the fact that the defendant testified in a civil law court with the plaintiff and the plaintiff's assertion that he is in collusion with the witness and the victim is not a value judgment.

Thus, since the contents of the former part cannot be seen as "false or fact" as referred to in the crime of defamation or the crime of interference with business, there is no other evidence to acknowledge it. Thus, the Defendant's act of attaching the former part shall not be deemed as constituting defamation or the crime of interference with business.

Therefore, there is no proof of the crime of defamation caused by false facts changed in the trial court. The court below found the defendant guilty of the crime of interference with business, thereby affecting the conclusion of the judgment. Thus, the defendant's appeal to the same purport is justified.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts charged of this case is as indicated in the above 1. A. As seen earlier, the Defendant’s act of attaching the above front section does not constitute defamation and interference with business, and there is no evidence to acknowledge that the Defendant had damaged the reputation of the victim by openly pointing out false facts or obstructed the work of the victim by spreading false facts. Thus, the above facts charged constitute a case where there is no proof of crime, and thus, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure

It is so decided as per Disposition for the above reasons.

Judges Park Young-young (Presiding Judge)