Defendant

Prosecutor

Freeboard Kim

Public-service Advocates's main right

Seoul Central District Court Decision 2007 High Court Decision 5295 Decided May 16, 2008

The judgment of the court below is reversed.

The sentence of sentence shall be suspended for the defendant.

Of the facts charged in the instant case, the facts charged of defamations Nos. 1, 2, 4, and 5 and insults Nos. 1, 2, 4, and 5 of the ancillary facts charged are acquitted.

1. Summary of grounds for appeal;

A. Defendants 1 and 2 of the facts charged

As to this part of the facts charged, the court below found the defendant guilty on the ground that it is difficult to see that the object of the statement made by the defendant as the non-indicted is the victim's name, and even if the non-indicted is considered to be specified, the main contents of the above article should be considered to be "a hospital in the operation of the victim." It is difficult to conclude that it is a false fact" with evidence and the non-indicted witness's legal statement submitted by the prosecutor even if it is a statement of fact, it is difficult to conclude that it is a false fact, and there is no other evidence to acknowledge it. The court below found the defendant guilty on the ground that there is no other evidence to acknowledge it. The defendant stated ○○ "the name of the victim's hospital in the operation of the victim." The defendant stated the above article with the intention to specify the victim, and the victim was specified. ② The contents of the above article was a concrete time for the situation of the hospital in the operation of the victim, and the design of the hospital is a convenition with the victim's opinion.

B. Articles 3 through 6 of the facts charged

According to the victim's statement, etc., the court below determined that there was no evidence to acknowledge that the content of this part of the comments made by the defendant was false, but there was no evidence to acknowledge that the facts were false, and that there was no evidence to acknowledge that the facts were false, the court below found the defendant not guilty of defamation on the ground that there was an error of incomplete deliberation.

2. Determination

A. Ex officio determination

(1) As to the grounds for appeal by the prosecutor, the health team ex officio prior to examining the grounds for appeal by the prosecutor shall be as follows: (a) 6, (2) 3, (3) 3, (4) 5, 6, (5) 3, (6) 4, and 5 of the facts charged; and (b) 6, Article 61(2) of the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information Protection, Etc., "Article 61(1) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Network Utilization and Information Protection, Etc.," and "Article 61(2) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Network Utilization and Information Protection, etc.," among applicable provisions of the Act, "Article 311, 37, and 38 of the Criminal Act," and "Article 61(2) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc., applies for changes to the facts charged and applies for adjudication.

(2) Preliminary facts charged

The Defendant complained against the Defendant’s failure to take any particular measure on the ground that he did not make any error because he did not receive a high frequency from the victim’s “○○○” sexual surgery operated by the Nonindicted Party, but found the Nonindicted Party due to side effects and gave an explanation about the side effects before the procedure.

1. At around 20:42 on March 3, 2007, by accessing the Internet portal website servers by using computers installed there at the place, and then openly insult the above Nonindicted Party by inserting a letter "I think that I would see that I would see that I would see that I would see that I would see that I would see that I would see that I would like to see. I would like to see that I would like to see. I would like to see. I would like to see. I would like to see that I would like to see.I would like to see. I would like to see. I would like to see. I would like to see. I would like to see. I would like to say

2. On the same day, at around 20:43 on the same day, the above Nonindicted Party was openly insulting by inserting a letter “○○○ and the design is also able to be able to be able to be able to be able to be able to be able to be able to be

3. 같은 해 5. 2. 10:22경 위 지식검색 질문＆답변 게시판에 “아.. 공소외인씨 가슴전문이라..눈이랑 턱은 그렇게 망쳐놨구나...몰랐네...”라는 글을 게재하여 공연히 위 공소외인을 모욕하고,

4. 같은 날 10:23경 위 지식검색 질문＆답변 게시판에 “수술 망치는일이 많으니까 빠져나갈 구멍을 만들어 놓는거겠지...사람 눈을 그따위로 만들어놓고... 다른데선 다 잘못했다는 걸 혼자만 잘 나왔다고...쯧쯧쯧...”라는 글을 게재하여 공연히 위 공소외인을 모욕하고,

5. 같은 날 10:25경 위 지식검색 질문＆답변 게시판에 “망치면 혼자만 잘 나온다고 우기는 곳.. 비추~!! ”라는 글을 게재하여 공연히 위 공소외인을 모욕하고,

6. 같은 날 10:27경 위 지식검색 질문＆답변 게시판에 “내 눈은 지방제거를 잘못 했다고...모양도 이상하다고 다른 병원에서 그러던데... 인쌩망쳤음...ㅠ.ㅠ”라는 글을 게재하여 공연히 위 공소외인을 모욕한 것이다.

B. Whether to recognize the primary and conjunctive facts charged

(1) Contents of the facts charged Nos. 1 and 2

According to the evidence duly adopted and examined by the court below, ○○○○○○○○○○○○○○○○○○○○○○○○○’s New Embryption, the Defendant did not take any measures on the ground that ○○○○○○○○○○○○○○○○○○○○○’s side effects occurred, and that ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was an online search report, and that ○○○○○○○○○○○○ was an online search report, and that ○○○○○○○○○○○○○○○○○○○○○○○ was an online search report, and that ○○○○○○○○○○○ was an online search report, and that ○○○○○○○ was an online search report, and that ○○○○○ was an online search report. It seems that she would not have been able to take any way to ask questions.

(2) Articles 3 and 6 of the facts charged

(가) 원심이 적법하게 채택하여 조사한 증거들에 의하면, 피고인은 2007. 5. 2. 10:22경 불상의 질문 및 답변 하단에 “아.. 공소외인씨 가슴전문이라..눈이랑 턱은 그렇게 망쳐놨구나...몰랐네...”라는 댓글을 단 사실, 피고인의 댓글 이전에 성명불상자가 2007. 1. 18. ‘ ■■'라는 아이디로 “ ○○ 공소외인 원장님 유륜절개 가슴성형, 눈, 코 전문으로 하구여 결과 괜찮으실 거예요”, 또 다른 성명불상자가 2006. 9. 5. ’ ▼▼'라는 아이디로 “ ○○가슴수술 잘해요^^ 저도 했구요..저도 추천~”이라는 댓글을 단 사실, 한편 피고인은 2007. 5. 2. 10:27경 위 지식검색 질문＆답변 게시판에 “압구정 신사에 있는 ○○성형외과 수술받으신분 조언부탁..”이라는 제목의 질문 및 그에 대한 답변 하단 의견란에 “내 눈은 지방제거를 잘못 했다고...모양도 이상하다고 다른 병원에서 그러던데... 인쌩망쳤음...ㅠ.ㅠ”라는 글을 게재한 사실, 피해자 운영의 ○○ 성형외과는 서울 강남구 신사동에 위치하고 있는 사실을 인정할 수 있다.

According to the above facts of recognition, it is clear that the defendant mentioned in Paragraph (3) of the facts charged by him refers to the name of the victim in itself, and in light of the relationship with the comments already made before the comments are made, it is clear that the defendant was identified as the victim's non-indicted. The article stated in Paragraph (6) of the facts charged refers to the victim's non-indicted sexual division in relation to the title of questioning. The contents of each item written by the defendant are specified because it appears that the defendant is called the victim's ordinary meaning of the used words, such as the relation with the existing comments, the overall flow of the notices, such as the relation with the existing comments, the connection method of the words, etc., and it is not good that the result after the surgery is performed by the victim," and the defendant's statement was made with the intention of disclosing the facts to the extent that the defendant has damaged the reputation of the victim, and it is not a simple purport that all other hospitals recognize it as the victim's expression is made with the intent of disclosing the facts to the extent of the victim's expression itself.

(B) The Defendant asserts that the act does not violate the social rules of Article 20 of the Criminal Act, and thus, constitutes a justifiable act.

1) Whether a certain act is justified as a legitimate act that does not contravene social norms and the illegality is excluded should be determined on an individual basis, based on specific circumstances. To recognize such legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method other than the act (see Supreme Court Decision 2006Do1187, Jun. 27, 2006, etc.).

2) As seen earlier, inasmuch as the Defendant defames the victim by openly pointing out facts about the victim on the bulletin board of the public portal site, as long as the Defendant’s act was committed for the purpose of selecting a hospital for the persons who asked questions about sexual surgery in a maximum situation where the victim did not recognize his/her mistake and rather treat the victim as being insulting, it cannot be said that the Defendant’s act constitutes a justifiable act, and thus, the Defendant’s act does not constitute a justifiable act. In conclusion, the Defendant’s act does not constitute a justifiable act.

(3) Contents of the facts charged Nos. 4 and 5

우선, 원심이 적법하게 채택하여 조사한 증거들에 의하면, 피고인이 2007. 5. 2. 10:23경 장소 불상지에서 그곳에 설치되어 있는 컴퓨터를 이용하여 인터넷 포털사이트 네이버에 접속하여 지식검색 질문＆답변 게시판에 “ ○○성형외과하고 ◎◎성형외과중에 어디가 가슴성형 잘하져??”라는 제목의 질문 및 그에 대한 답변 하단의 의견란에 “수술 망치는일이 많으니까 빠져나갈 구멍을 만들어 놓는거겠지...사람 눈을 그따위로 만들어놓고... 다른데선 다 잘못했다는 걸 혼자만 잘 나왔다고...쯧쯧쯧...”라는 글을 게재한 사실(수사기록 16, 17면), 같은 날 10:25경 위 지식검색 질문＆답변 게시판에 “ ○○ 성형외과 가슴성형 어떤가요”라는 제목의 질문 및 그에 대한 답변 하단의 의견란에 “망치면 혼자만 잘 나온다고 우기는 곳.. 비추~!!”라는 글을 게재한 사실(수사기록 12, 13면)은 인정할 수 있다.

However, if the facts are identical to the above, since the article written by the defendant does not reveal the following specific contents: (a) where the victim's name is indicated or does not reach the degree of the victim's name in question; (b) whether the victim's opinion in each of the above items and the statement written by the defendant is about the victim's ○○ sexual surgery operated by the non-indicted. As long as the victim's opinion is not clearly identified, it is insufficient to recognize that the above item and the statement written by the defendant are contents about the victim's ○○ sexual surgery operated by the non-indicted. As long as the victim's opinion written by the defendant is not specified, it cannot be deemed that the above article damaged the victim's reputation or insulting the victim.

3. Conclusion

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

The Defendant: (a) was under a high sect in the sexual surgery operated by the victim Nonindicted Party, but the Nonindicted Party was able to find the Nonindicted Party due to side effects; (b) sought the Nonindicted Party; (c) provided sufficient explanation on the side effects before the procedure; and (d) did not make any error; and (c) did not take any particular measures; and (d) did so to raise a complaint to the Nonindicted Party and impair the honor of the Nonindicted Party;

1. 2007. 5. 2. 10:22경 위 지식검색 질문＆답변 게시판에 “아.. 공소외인씨 가슴전문이라..눈이랑 턱은 그렇게 망쳐놨구나...몰랐네...”라는 글을 게재하여 공연히 사실을 적시하여 공소외인의 명예를 훼손하고,

2. 같은 날 10:27경 위 지식검색 질문＆답변 게시판에 “내 눈은 지방제거를 잘못 했다고...모양도 이상하다고 다른 병원에서 그러던데... 인쌩망쳤음...ㅠ.ㅠ”라는 글을 게재하여 공연히 사실을 적시하여 공소외인의 명예를 훼손한 것이다.

1. The defendant's partial statement in the original judgment;

1. The statement of the non-indicted witness in the second trial record of the court below

1. Statement of the suspect interrogation protocol on the accused prepared by the police;

1. Statement of statement by the police officer against the Nonindicted Party

1. Complaint;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 61(1) of the Act on Promotion of Information and Communications Network Utilization

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. The type to be suspended;

Fines 1,000,000

1. Invitation of a workhouse;

Articles 70 and 69(2)(50,000 won per day) of the Criminal Act

1. Suspension of sentence;

Article 59(1) of the Criminal Act (Consideration of the motive and circumstance leading to the instant crime, and the fact that the Defendant is against the Defendant, etc.)

Of the primary facts charged of the instant case, the summary of the defamation Nos. 1, 2, 4, and 5

The Defendant: (a) was under a high sect in the sexual surgery operated by the victim Nonindicted Party, but the Nonindicted Party was able to find the Nonindicted Party due to side effects; (b) sought the Nonindicted Party; (c) provided sufficient explanation on the side effects before the procedure; and (d) did not make any error; and (c) did not take any particular measures; and (d) did so to raise a complaint to the Nonindicted Party and impair the honor of the Nonindicted Party;

1. Around 20:42 on March 3, 2007, by accessing the Internet portal website servers by using computers installed there at the place, and thereby impairing the honor of the Nonindicted Party by openly pointing out the fact by openly pointing out the fact on the bulletin board, “The design is also a ○○, fluoral and fluoral. The design. The avoidance of responsibility is no fluoral between the fluoral representative. It seems that there seems to be all fluoral. I will drive away................ I will see the honor of the Nonindicted Party.”

2. On the same day, at around 20:43 on the same day, the author damages the honor of the Nonindicted Party by openly pointing out the fact by inserting a letter “○○○ and the design is able to be able to be able to be able to be able to be able to be able to.

3. 같은 날 10:23경 위 지식검색 질문＆답변 게시판에 “수술 망치는일이 많으니까 빠져나갈 구멍을 만들어 놓는거겠지...사람 눈을 그따위로 만들어놓고... 다른데선 다 잘못했다는 걸 혼자만 잘 나왔다고...쯧쯧쯧...”라는 글을 게재하여 공연히 허위사실을 적시하여 공소외인의 명예를 훼손하고,

4. 같은 날 10:25경 위 지식검색 질문＆답변 게시판에 “망치면 혼자만 잘 나온다고 우기는 곳.. 비추~!! ”라는 글을 게재하여 공연히 허위사실을 적시하여 공소외인의 명예를 훼손한 것이다.

of this title;

Of the ancillary facts charged in the instant case, the summary of the insults Nos. 1, 2, 4, and 5

The Defendant complained against the Defendant’s failure to take any particular measure on the ground that he did not make any error because he did not receive a high frequency from the victim’s “○○○” sexual surgery operated by the Nonindicted Party, but found the Nonindicted Party due to side effects and gave an explanation about the side effects before the procedure.

1. At around 20:42 on March 3, 2007, by accessing the Internet portal website servers by using computers installed there at the place, and then openly insult the above Nonindicted Party by inserting a letter "I think that I would see that I would see that I would see that I would see that I would see that I would see that I would see that I would like to see. I would like to see that I would like to see. I would like to see. I would like to see. I would like to see that I would like to see.I would like to see. I would like to see. I would like to see. I would like to see. I would like to see. I would like to say

2. On the same day, at around 20:43 on the same day, the above Nonindicted Party was openly insulting by inserting a letter “○○○ and the design is also able to be able to be able to be able to be able to be able to be able to be able to be

3. 같은 날 10:23경 위 지식검색 질문＆답변 게시판에 “수술 망치는일이 많으니까 빠져나갈 구멍을 만들어 놓는거겠지...사람 눈을 그따위로 만들어놓고... 다른데선 다 잘못했다는 걸 혼자만 잘 나왔다고...쯧쯧쯧...”라는 글을 게재하여 공연히 위 공소외인을 모욕하고,

4. 같은 날 10:25경 위 지식검색 질문＆답변 게시판에 “망치면 혼자만 잘 나온다고 우기는 곳.. 비추~!! ”라는 글을 게재하여 공연히 위 공소외인을 모욕한 것이다.

For the purposes of this chapter:

This constitutes a case where there is no proof of a crime as seen in the above 2.b. (1) and (3), and thus, the above facts charged are acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act.

Judges Cho Jong-sung (Presiding Judge)