Whether the facts alleged in the “crime of defamation by a false statement of fact” under Article 307(2) of the Criminal Act are false or false, and whether the above crime is established by the willful negligence (affirmative), and whether the same legal doctrine applies to the determination of “crime of defamation by a person who committed a false statement of fact” under Article 308 of the Criminal Act (affirmative)

In determining whether the facts alleged in the crime of defamation by a statement of false facts under Article 307(2) of the Criminal Act are false, if the facts alleged in the crime of defamation include not only a certain difference from the truth or a certain exaggerated expression in light of the overall purport of the alleged facts, it shall not be deemed as false, but if the material part is not consistent with the objective facts, it shall be deemed as false. Furthermore, in light of the nature of the existence or content of the alleged facts, it is difficult to know or prove that the facts were false, it shall be determined by comprehensively taking into account various objective circumstances, such as the Defendant’s educational background, career, social status, time of publication, and anticipated ripple effect, based on the contents of the alleged facts, the existence and content of the alleged facts, the existence of the alleged facts, and the source and awareness of the facts revealed by the Defendant. Since the intent of the crime includes not only the conclusive intention but also the so-called willful intention, which is the intention to accept it, the crime of defamation by a statement of false facts also constitutes willful intentional intent. The aforementioned legal doctrine also applies to the determination of defamation.

Articles 307(2) and 308 of the Criminal Act; Article 308 of the Criminal Procedure Act

Supreme Court Decision 99Do5190 Decided February 26, 2004, Supreme Court Decision 2005Do2627 Decided July 22, 2005 (Gong2005Ha, 1462) Supreme Court Decision 2010Do6343 Decided November 15, 2012

Defendant

Defendant

Law Firm KJ et al.

Seoul Central District Court Decision 2013No879 Decided September 26, 2013

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Summary of the facts charged in this case

At around 10:00 on March 31, 2010, the Defendant had been working for the second floor of the Seoul Metropolitan Police Agency 20, the second floor of Jongno-gu Seoul Metropolitan Police Agency, against the five team leader leader and 398 members belonging to the Seoul Metropolitan Police Agency. The fact was that the second floor of the Seoul Police Agency, when the second floor of the Seoul Police Agency, had been working for the special culture of the police officers of the police officers of the five team team, was not found during the investigation of the victim non-indicted 1, who died on May 23, 2009, and there was no fact that the second floor of the former president was in the process of investigating the prosecution at that time, and the victim non-indicted 2, the spouse of non-indicted 1, and the former president, were unable to carry out the special inspection of the death of non-indicted 1, because of the fact that the second floor was non-indicted 1, the second floor was non-indicted 1, and it was found that the second floor was non-indicted 1's.

2. Legal principles applied to the instant case

In determining whether the facts alleged in the crime of defamation by a statement of false facts under Article 307(2) of the Criminal Act are false, if the facts alleged are different from the truth or are merely a somewhat exaggerated expression in light of the overall purport of the alleged facts, it shall not be deemed as false. However, if the important part is not consistent with the objective facts, it shall be deemed as false (see, e.g., Supreme Court Decision 2010Do6343, Nov. 15, 2012). Furthermore, it is difficult to know or prove from outside due to its nature whether an actor knows that the matter is false, and it is difficult to know or prove it. As such, based on the Defendant’s educational background, experience, social status, timing and contents of publication, the source and content of the fact expressed by the Defendant, and the background leading up to such fact, etc., such objective circumstances as the anticipated ripple effect as well as the degree of intentional injury (see, e.g., Supreme Court Decision 2005Do2627, Jul. 22, 2005).

3. As to the ground of appeal regarding the falsity of the instant speech

A. According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court, the Defendant’s assertion on the meaning of the borrowed name account has changed as follows.

In other words, the Defendant: (a) during the first instance trial process conducted by an investigative agency or made a statement in the instant lecture (hereinafter “the instant tea account”) refers to the account in the name of Nonindicted 3 and 4, which is an administrative officer of the second attached office of Cheongdae-dae, and (b) Nonindicted 5,00 U.S. dollars 6,40,000 related to Nonindicted 5, such as USD 5,000,00, which was remitted to Nonindicted 6, who was the senior secretary of the former president, was not the account related to Nonindicted 7, who is the senior secretary of the office in charge of the affairs of the first instance. (ii) Unlike the previous one before the closing of the argument in the first instance trial, the instant tea account was argued that Nonindicted 1 was responsible for by the former president for himself, or that it was possible to trace any content that could have been in the name of Nonindicted 6, who was in the name of Nonindicted 3, who was in the name of Nonindicted 4, who was in the name of his defense counsel.

B. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s statement on the name account and the special prosecutor’s account was false on the following grounds.

① The name account of this case is an account managing the amount of money that was not determined as a bribe, as stated by the Defendant’s own statement. It means that the former president, his spouse, son, or son, etc. actually holds the money in the said account. The term “the name account that can be the motive for suicide” in the Defendant’s statement is more than the meaning of a simple name account, and it is reasonable to deem that the term “the name account that is likely to be the motive for suicide” refers to a new name account that is not known to the former president.

② The contents of Nonindicted 2’s U.S. dollars 1 million prior to Nonindicted 1’s summons, investigation, or death with Nonindicted 1’s former president, USD 5 million U.S. dollars 6, USD 400,000, KRW 750,000, and KRW 1.550,000,00, etc. are already revealed before Nonindicted 1’s death through investigation agency or press reports, and is not a new account, but a new account is not only a new account, but also an amount received with both U.S. dollars and cash or bonds. Thus, it is irrelevant to the instant borrowed account that the KRW 100,00 check was deposited in large

③ As to whether the instant borrowed account means Nonindicted 3 and 4’s account under the name of Nonindicted 3 and Nonindicted 4, which is an administrative officer affiliated with the office of the office of the office of the president, Nonindicted 3 and 4, the balance of deposits in the name of Nonindicted 3 and 4 is merely KRW 8,302,00,000, and the maximum amount of KRW 400,000,000,000 is specified in their own account. The amount of KRW 10,000,000,000, out of KRW 200,000,000,000,000 KRW 10,000,000,000,000, more than KRW 70,000,000,000,000, more than KRW 20,000,000,000,000,00.

④ From June 1, 2005 to March 31, 2009, Nonindicted 100 U.S. dollars 400,000 was already investigated or reported by an investigative agency, and Nonindicted 10’s violation of the Foreign Exchange Transactions Act was also received in cash. In light of the fact that Nonindicted 11, 12, 10, and 13’s account accounts were either over million won or mainly deposited with the card payment, etc., it cannot be seen as the instant borrowed account.

⑤ On June 26, 2007, the Defendant’s search and seizure warrant of April 20, 200 for investigating the source of USD 200,00 transferred or exchanged from Nonindicted 14, 10 accounts. In addition to Nonindicted 3, 4, there is a possibility that there is another 1,12, 10, and 13 financial account, other than Nonindicted 11, 100,000 won checks, and two copies of the KRW 100,000 Check issued from Nonindicted 8’s corporate bank account are 10,000,000 won checks issued from Nonindicted 10,000 won checks, which were 10,000 won checks issued from Nonindicted 1, 200, which were 8,000 won checks issued from Nonindicted 3’s corporate bank account, which were 10,000 won checks issued from the Central Prosecutor’s Office of Public Prosecutor’s name and 28,000,000 won checks were presented to the account owner.

④ The contents of the introduction of the special prosecutor system asserted in the Democratic Party before the death of Nonindicted Party 1 are subject to the problems of prosecutorial investigation against Nonindicted Party 1, including Nonindicted Party 15, Nonindicted Party 15, etc., who was involved in Nonindicted Party 5’s former president’s former president’s corruption and publication of the suspected suspicion. There is no connection with the borrowed name account related to Nonindicted Party 1’s former president. A democratic party continues to assert the introduction of the special prosecutor system, but it appears that the government and the said party opposed to the introduction of the special prosecutor system. Although the Defendant opposed to the introduction of the special prosecutor system after the issue of the Defendant’s remarks, this part of the statement is nothing more than the fact that the former president’s death and the instant remarks were made after the instant case.

C. Judgment on the grounds of appeal

(1) As the grounds of appeal, although the former part of the facts charged in this case states that “a large amount of borrowed-name accounts in relation to Nonindicted Party 1 was never discovered during the investigation by the prosecution at around that time,” the lower court erred in its judgment that the prosecutor did not specify as the object of adjudication on whether the account was discovered at which KRW 100,000 check was deposited,” and the above part of the statement is merely an incidental content among the statement in this case and does not contain any meaning of defamation, and it cannot be subject to adjudication because it is merely an opinion on the fact that the motive of suicide is not a statement about the fact that it is a motive of suicide. However, the above assertion cannot be accepted for the following reasons.

(1) It is not reasonable to remove only a part of the facts charged as a whole and understand the meaning thereof.

② The key content of the instant statement is that “the next-name account deposited with a large amount of KRW 100,00 won check was discovered before its marization and thereby, Nonindicted Party 1 committed suicide by the former president.” It is very important to grasp what the Defendant intended to identify what the account was deposited with a KRW 100,00 check or that the account was discovered at the time immediately before Nonindicted Party 1’s death.

③ The Defendant also asserted that the “large-scale borrowed-name account” which the investigative agency made his/her statement has actually existed as a non-financial account in which at least one billion won was deposited with a check of KRW 100,000.

④ The lower court did not recognize the fact that the instant borrowed name account was the motive for Nonindicted Party 1’s suicide, but rather accepted a new borrowed name account, rather than the account revealed by investigation or press report, as a borrowed name account, which is not a new account, which is not an account that can impose a significant responsibility and burden on the former president beyond the meaning of a simple borrowed name account.

⑤ As seen earlier, the Defendant and the defense counsel asserted that the meaning of the borrowed name account of this case first refers to the account under the name of Cheongdae Women's Administrative Officer with a large amount of more than one billion won deposited with the check of KRW 1 billion. However, the Defendant and the defense counsel asserted that the last attitude is included in all the accounts related to the money that was not fixed, or all the accounts that may be the proviso to disclose the borrowed name account. As such, the intention of the defense counsel to point out and dispute any error related to the specification or subject matter of the facts charged is to reveal that the contents of their claim differ from the first point of view is justified.

(2) Although the core of the defense counsel’s argument in this part of the grounds of appeal is that the court below found erroneous facts as to whether the instant remarks were false, considering the aforementioned circumstances in light of the aforementioned legal principles and evidence duly admitted by the court below and the court of first instance, the court below’s determination is acceptable. In so doing, the court below 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 principles on the subject of and criteria for the offense of defamation committed by a specific person or a deceased person, the degree of burden of proof and proof, and the degree of burden of proof

4. As to the ground of appeal on the Defendant’s false perception

A. The lower court deemed that the Defendant was aware of the falsity of the instant speech for the following reasons.

① On January 1, 2010, the Defendant testified that Nonindicted 17 met with others, as in other persons, and that she met the third party prior to the instant speech. Nonindicted 17 testified that there was no fact that the Defendant met the Defendant prior to the instant speech, or that there was no fact that the Defendant made the instant speech to the Defendant.

② As the Defendant’s assertion, Nonindicted 17 met up to the call prior to the instant speech, Nonindicted 17 was only 3 times, and it is difficult to understand that the instant speech was first made to a person who did not reach several times prior to the instant speech, and that it was believed to have been.

③ In light of the current status of Nonindicted 17 at the time (the head of the ▽▽▽△ Research Institute), Nonindicted 17 appears to have not been in the position to know the investigation status of the Central Investigation Agency of the Supreme Prosecutors’ Office regarding the former president of Nonindicted 1. The Defendant also believed that Nonindicted 17 was in the position to easily access high-class information than the Defendant on the grounds that Nonindicted 17 was the head of the Seoul Provincial Police Agency, who was the director of the Seoul Provincial Police Agency having known about the sensitive social and political issues. Therefore, it is difficult to understand the Defendant’s assertion that Nonindicted 17 believed that the content was true.

④ Although the Defendant’s statement of this case is very abstract to the effect that “the name account, the 100,000 foot check was published by another person, and it was discovered,” the instant statement was at issue, Nonindicted 17 did not have to ask Nonindicted 17 about what “a large amount of 10,000 foot check was deposited,” and the authenticity of the fact. There was no mentioning Nonindicted 17 even thereafter.

⑤ Although the Defendant was in a position that was able to verify the authenticity of Nonindicted 17 through other channels, etc., he did not confirm it otherwise.

B. Examining the aforementioned legal principles and the evidence duly admitted by the first instance court and the lower court, the aforementioned determination by the lower court is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to subjective elements of defamation

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)