(영문) 서울중앙지방법원 2018.10.26. 선고 2017고단8615 판결

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in each Labor House for the period of 10,000 won converted into one day.

To order the Defendants to pay an amount equivalent to the above fines.

The summary of the acquittal part in this judgment against Defendant B is publicly notified.

Reasons

Criminal facts

Defendant A is a reporter belonging to the (ju)C, Defendant B is a cartoon, and the victim D was involved in a F meeting held on November 14, 2015 at Seoul E, etc., but was removed from the police’s head head and was sent to G Hospital and was under surgery for a long time without recovering consciousness, and was under treatment for a long time after undergoing surgery, such as double dysculeing and dyscule removal, etc., on September 25, 2016.

피고인들은 의식이 회복될 가능성이 없어 환자인 망인에게 고통만 줄 뿐인 무의미한 연명치료를 피해자 가족들이 원치 않아 의료진과의 협의로 혈액투석이 중단된 사실과 피해자가 망인의 사망 당시 인도네시아 발리에서 시댁 가족모임을 하고 있었던 사실을 알게 되자, 마치 피해자가 의도적으로 모든 치료를 거부하여 망인을 안락사 시키고, 아버지인 망인의 병세에는 관심도 없이 발리에서 휴양하며 자신(피해자)의 안위만을 생각하는 비정하고 비상식적인 딸인 것처럼 묘사하는 글 또는 만화를 게재하여 피해자를 비방하기로 마음먹었다.

1. Defendant A

피고인은 2016. 10. 3.경 불상의 장소에서 정보통신망인 피고인의 SNS 페이스북에 피해자를 지칭하며 "납득하기 어려울 정도로 매정한 딸이 있다. 아버지가 급성신부전으로 위독한 상황에서 의료진은 투석치료를 하지 못했다. 바로 가족들이 원하지 않았기 때문이다. 그 딸은 다음과 같이 말했다. 어차피 아버지의 사망일시만 바뀔 뿐이라고, 결국 아버지는 급성신부전으로 숨을 거뒀다. 사실상 아버지를 안락사 시킨 셈이다.

Moreover, the fact that the father was playing in a foreign tour in the situation where the time of death of the father was determined is that the father was playing in a foreign tour. It does not know, but it is the situation where the time of death is determined. The President of the Republic of Korea has left a film. The President of the Republic of Korea has played a role as the Gongsan. The idea is that it is more advanced. The idea is that the victim’s reputation is the victim’s reputation.

2. Defendant B

On October 4, 2016, the Defendant described as follows: “Around October 4, 2016, the medical personnel who intends to provide multi-level treatment to the deceased who was in an information and communications network M homepage (N) 0 for the purpose of slandering the victim at the home of the Defendant’s K Apartment L, Gangnam-gu, Seoul, described as if the medical personnel who was in an information and communications network in an information and communications network was unable to do so without the consent of his family members.” The Defendant described as follows: (a) as if the victim was 1st of the same cartoons and the victim’s under the direction as “the victim was fluened in a stro, so that he would look at his father at the flue North, while she was fluened in a fluor, and damaged the reputation of the victim by openly pointing out the fact that he was in a fluorous manner.” (b) The Defendant described as follows.

Summary of Evidence

1. Defendants’ respective legal statements

1. Some statements in the suspect examination protocol of Defendant B by the prosecution

1. Legal statement of witness D;

1. Investigation report (Listening to the statement of the complainants' agent related to the suspension of H blood dumping), investigation report (verification of suspect A P PP notices, etc.);

1. The entry and departure status of each individual and copies of indictment;

Application of Statutes

1. Article applicable to the facts constituting the crime and the choice of punishment (defendants);

Article 70(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Ad hoc payment order:

Article 334(1) of the Criminal Procedure Act

○ Judgment on the Defendants and their defense counsel’s assertion

1. Defendants’ assertion

(a) The person does not specify the victim (the defendant B);

The defendant is intended to criticize the general attitude of the defendant, and the victim is not specified, and it is not a pulmatic cartoon.

B. There is no purpose of slandering (the defendants)

The victim is officially recognized and1) Since the expression of the facts alleged by the Defendants pertaining to the deceased’s family members, such as the victim, etc., in relation to the deceased’s case, contributing to the formation of public opinion or the public debate, it cannot be deemed purely private areas. The victim himself/herself saw the risk of defamation by playing his/her overseas travel, thereby raising the risk of defamation. The Defendants merely stated the facts and do not use insulting expressions, etc., and thus, the nature of reputation damaged by such expression and the degree of infringement is not serious.

2. Determination

(a) Whether the victim is specified (Defendant B);

① On November 14, 2015, the Deceased participated in a F assembly held in Seoul E, but died on September 25, 2016, when he/she was sent to G hospital for a long time without recovering consciousness because he/she lost consciousness by facing his/her head.

② Around September 2016, the content that the victim got a rest on the Internet (hereinafter “the victim”). Around September 29, 2016, the Defendant stated that “Iri’s father to his Peston North Korea is not able to keep up to the two places in the world’s resort site, and that “Iri’s father was changed to a hospital in Seoul, which was located in his location information on the back of the back of the back of the back of the end of September 2016” (hereinafter “Investigation record 106 pages).

③ Around that time, discussions surrounding the cause of death on a private person listed in the death diagnosis report of the deceased began, and in this regard, the Special Investigation Committee of G Hospital was organized and announced on October 3, 2016.

④ In full view of the foregoing circumstances: (a) the cartoon content posted by Defendant B from around 1 to 3 and the cartoon content posted by Defendant B, it is recognized that the Defendant specified the victim.

(b) Whether there exists the purpose of slandering (defendants);

1) "Purpose of slandering a person" under Article 70 (1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. of Act on Promotion of Information and Communications Network Utilization and Information Protection and Communications Network Utilization and Information Protection, Etc. requires the intent or purpose of defamation. As such, it is reasonable to deem that the objective of slandering a person is denied, barring any special circumstance, in a case where the alleged fact concerns the public interest, unless the alleged fact concerns the public interest. The term "case where the alleged fact concerns the public interest" refers to the public interest when objectively viewed the alleged fact as related to the public interest, and thus, the perpetrator also expresses the fact for the public interest. If the alleged fact concerns the public interest, it includes not only the public interest of the State, society, or other general public, but also the interest and interest of a specific social group or its entire members. Whether the alleged fact concerns the public interest should be determined by considering the method and degree of harm to the public interest of the victim or whether it is merely a private person, and whether it constitutes one of the following factors: (see Supreme Court Decision 1010Do14).

2) Determination on the instant case

① The victim, as a dependent of the deceased, is a person of public controversy due to excessive suppression of public authority, such as direct murdering. The privacy of the victim mentioned by the Defendants is far away from the above public debate in which social interest was given.

② With respect to so-called limited public figures, which attracts attention within a certain period of time, referring to their privacy, to criticize the person’s personal right is infringed, and eventually, the person’s personal right is infringed, and the public debate that raised the question is not limited to the public debate.

③ 피해자가 아버지인 망인이 위독한 가운데 미리 예정된 시댁 행사를 위하여 발리에 간 사실만으로 피해자가 명예훼손적 표현을 자초하였다고 보기 어렵다.

④ The Defendants’ form and content of the above expressive act revealed in the facts charged are sufficient to make the victim’s identity doubtful and scarcity the victim’s identity to the extent that the victim’s character may be undermined by raising an issue of public authority, and by scarcitying the deceased’s death.

(6) From 6 to 4, it is reasonable to deem that there was a purpose to defame the Defendants.

Reasons for sentencing

피해자 및 망인의 유가족들이 가족을 잃은 슬픔에 처해 있을 때, '아버지가 위독한데 피해자가 발리 여행을 갔다'는 취지의 비난이 인터넷상에서 일자, 피해자는 2016. 10. 1. '오래 전 예정되어 있던 시댁 식구와의 가족여행이었다'는 내용의 글을 올렸고, 같은 달 2. P 등에 기사화되기도 하였다.

In such a situation, Defendant A, as a journalist, published the instant text and cartoons for the purpose of slandering the victim, while he is in a position that can exert a considerable influence on the media as a web producer, Defendant B published the instant text and cartoons. Such Defendants’ respective crimes of this case aggravated the suffering of the victim who lost his family.

However, the sentencing conditions as ordered shall be determined by comprehensively taking into account the following factors: the Defendants did not have any previous error; the Defendant’s age, character and conduct, environment, motive and result of the crime; and the circumstances after the crime was committed.

The non-guilty part (the primary charge against the defendant B)

1. Summary of this part of the facts charged

On October 4, 2016, the Defendant: (a) there was no fact that the victim’s family members refused to provide all life-sustaining treatment (such as installation of a human smoking machine) to H (hereinafter referred to as “the fact that he/she has carried out the victim’s movement to B while he/she hedging in the situation where H is hedging,” and (b) there was no fact that the victim took the hin to Balk-be, Salk-be, Salk-be, Salk-be, Salk-be, Salk-be, Salk-be, Sk-be, K apartment L’s house; and (c) there was no fact that H puts the victim into Balk-be, Sk-be, Sk-be, Sk-be, Sk-be, Sk-be, Sk-be, Sk-be, Sk-be, Sk-be, Sk-be, and his/her father.

2. Determination

A. Relevant legal principles

A statement of fact in the crime of defamation by means of information and communications networks is not necessarily limited to cases where a fact is directly expressed, but it is sufficient to suggest the existence of such fact in light of the overall purport of the expression, even in cases of indirect and indirect expressions, and thereby, to the extent that the social value or assessment of a specific person is likely to be infringed (see, e.g., Supreme Court Decision 2008Do2422, Jul. 10, 2008). In addition, in cases where an essential part of the alleged fact is consistent with objective facts, it cannot be deemed as a false fact even if there is a somewhat exaggerated expression (see, e.g., Supreme Court Decision 9Do3213, Oct. 22, 199).

B. Determination on the instant case

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is insufficient to acknowledge that the evidence alone submitted by the prosecutor presented by the prosecutor was false facts to the cartoons posted by the defendant, and there is no other evidence to acknowledge this otherwise.

1) Of this part of the facts charged, as to the facts involved

① In the case of a scenic cartoon or a shot, unlike a direct speech and behavior, a certain degree of division may be permissible as far as a shot, silver, or scarmatic expression technique is commonly used and general readers tend to accept in light of such nature (see Supreme Court Decision 2005Da75736, Feb. 14, 2008).

② At the time, the deceased’s doctor expressed to the effect that “if the deceased’s doctor had been actively treated, such as physical marry, it would not have occurred if the death had been implemented.” The above Defendant A published a letter stating that “The medical staff did not have to undergo an marry treatment in the situation where AV was immediately ill in the form of acute marry, and the family did not want to do so.”

3. In light of the above legal principles, when compared with the above written statements and comments, it is difficult to readily conclude that the multiple cartoons posted by the defendant suggesting facts among this part of the facts charged, and it is insufficient to deem that the defendant had a false perception.

2) Of the facts charged in this part, the phrase “Wat” is written in relation to the facts of the judgment below: ① The phrase “ Q 1st to female of cartoons,” and the phrase “R” is written. In light of the composition and expression of the above cartoons, it is true that the principal facts that the deceased was exposed, among the above facts, she took advantage of the victim’s rest and rest.

② 피해자는 이미 예정되어 있던 시댁 행사를 위하여 발리에 간 것이지, 휴양만을 목적으로 간 것이 아니었으나, 피해자가 이 법정에서 휴양 행위를 하였다는 취지로 진술한 점, 앞서 본 바와 같이 만평에서 과장된 표현이 일부 용인되는 점에 비추어 보면, 위 암시된 사실 자체가 허위라고 보기 어렵고, 달리 이를 인정할 증거가 없다.

3. Conclusion

The gist of the facts charged in the instant case is that the Defendant revealed false facts as stated in the facts charged, thereby impairing the reputation of the victim. As seen above, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, as it constitutes a case where there is no evidence of criminal history or room. However, as long as the Defendant was found guilty of a crime violating the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information Protection (Defamation), which is the ancillary facts charged, the Defendant shall not

Judges

Judge Choi Han-unpy

Note tin

1) The Defendant’s defense counsel took the risk of critical news reports and comments by voluntarily participating in public debate, such as expressing his opinion through press reports, etc., and speaking and speaking in order to affect the result of the death of the deceased. The Defendant asserts that the suspension of active life-sustaining treatment for the deceased is an official activity in which the deceased’s death is anticipated during his death hedging.