2016Da278166. Compensation for damages (as in principal action)

2016Da278173 (Counterclaims) Compensation for damages

A person shall be appointed.

Law Firm LLC (LLC)

Attorney Lee Ho-ho, Attorney Park Jong-young

A person shall be appointed.

Seoul High Court Decision 2016Na2016397 (Main Office), 2016Na 2016Na decided November 29, 2016

2016403 (Judgment on counterclaim)

April 3, 2019

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the principal lawsuit is reversed, and that part of the case is remanded to the Seoul High Court.

The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the main claim

A. As to the part concerning Defendant (Counterclaim Plaintiff; hereinafter Defendant hereinafter “Defendant”)’s I notice on the North Korea, the lower court acknowledged that the Defendant posted the same writing as indicated in its ruling on 13 occasions from January 21, 2013 to February 16, 2014 on 13 occasions, and, among them, acknowledged Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)’s charge of pro-North Korea suspicion, “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” and “pro-North Korea’s act of expression,” “pro-North Korea’s act of expression,” and “pro-North Korea’s act of expression,” as well-pro-North Korea’s act.

① The term “pro-North Korea” refers to the following as it has been criticized that the equality of the parties in the past BA has no independence and autonomy in North Korea in relation to the party’s policy or ideological direction. Since the criticism was made, North Korea is pro-enemy, it can be placed in the same department as North Korea, and it can be subject to criminal punishment by committing an act denying the identity and fundamental constitutional order of the Republic of Korea. Thus, in our country where the two Koreas stand large and the National Security Act is in force, if a specific person is classified as North Korea pro-North Korea, then the crime is committed as a person who committed an anti-social force, and the social reputation and reputation thereof will be considerably damaged, and thus, the honor shall be deemed to be damaged.

B The instant expressive act constitutes an expression that constitutes “the Plaintiff’s assertion or policy of the North Korean regime, which is an anti-government organization, and constitutes an implied expression including the fact that the head of a local government, who gives consent to the assertion or policy of the North Korean government, or who conducts such a speech, is the head of a local government who conducts such a speech.” As alleged by the Defendant, the instant expressive act refers to a person who is in accordance with the route of W political parties and W political parties as a pro-North Korea force, and is not premised on the premise that the Plaintiff has the ideology of pro-North Korea, nor is it merely a critical opinion with the pro-North Korea force. Therefore, it constitutes defamation that seriously

③ Even if the purpose of the instant expressive act is for the public interest, there is no ground to readily conclude the Plaintiff’s political inclination itself as “pro-North Korea,” and the meaning of “pro-North Korea used by the Defendant is bound to be regarded as “pro-North Korea,” which is ordinarily literal meaning,” and there is considerable reason to believe that the statement of fact due to the instant expressive act is true or true.

It is difficult to see that it belongs to the permissible range as an investigation exaggeration even in light of the illegal and fatal meaning of the present situation of the Republic of Korea. Therefore, the illegality is not dismissed.

(2) However, the lower court’s aforementioned determination is difficult to accept for the following reasons. (A) Defamation, which constitutes tort under the Civil Act, refers to an act of infringing on a social objective evaluation of personal values, such as a person’s character, morals, reputation, and credit, by publicly expressing facts. An expressive act explicitly stating a fact to the extent likely to infringe on another person’s social evaluation, may constitute defamation. Of course, an expressive act expressing an opinion or comment may constitute defamation if the assertion of a hidden basic fact, which serves as the basis for the opinion, is implicitly included in light of the overall purport thereof, and if such fact may infringe on another person’s social evaluation. An expressive act, which separately expresses a fact that serves as the basis for the opinion, may constitute defamation if it infringes on another person’s social evaluation solely based on the publicly alleged basic fact (see, e.g., Supreme Court Decision 2013Da26432, Sept. 10, 2015). However, if only pure opinion constitutes defamation of another person’s personal right or an expression of another person’s personal right going beyond 28.

In a case involving tort liability due to a political expression, defamation and insult should be dealt with separately, and the recognition of responsibility should be different, thereby ensuring broad freedom of expression in relation to political debate or expression of opinion. Accordingly, for the responsibility of defamation to be recognized due to a political expressive act, it is recognized that reputation has been damaged by a statement of fact. In determining whether an expressive act constitutes defamation, not only the expression used but also the expression used should be taken into account when determining whether the expressive act constitutes defamation. In such cases, in the case of a person who is a public figure of the head of a public debate, criticism shall be borne and such criticism shall be overcome through a statement and re-brupting. The position of a speaker or his/her usual attitude may affect the determination of whether the other party’s reputation has been damaged by his/her speech.

Since in a democratic country, through the free formation and transmission of public opinion, the majority opinion should be gathered and maintained to create and maintain democratic political order, the freedom of expression, in particular, the freedom of public concerns, as an important constitutional right, should be guaranteed to the maximum extent possible. As such, in cases where a statement of fact is partially included in the media that criticizes public officials, etc. or expresses political opposing opinions, recognition of tort liability should be careful. Although a certain person’s political ideology is a matter of fact, in many cases, it is impossible to determine it without any debate or evaluation, and thus, it is not desirable to impose judicial liability by directly intervention in a debate or debate on political ideology.

As to the part that can be seen as being only an investigative exaggeration or a non-genetic expression that can be ordinarily used in the process of political ideological controversy, it may result in an excessive restriction on the freedom of expression (see Supreme Court en banc Decision 2014Da61654, Oct. 30, 2018).

On the other hand, the word "pro-North Korea" was used in various ways from the meaning of "the attitude of unsatising North Korea in the past" to the meaning of "the anti-state and anti-social force that new subject ideology and denies the identity and consistency of the Republic of Korea" to the meaning of "persons who have a friendly attitude in North Korea," and "persons who have a critical opinion about the government's policies on the border of the Republic of Korea". In addition, this word arises from the situation where the Republic of Korea and North Korea are hostile, so the concept and the scope of the term itself is changed depending on the political situation of the times, and the meaning of the expression is bound to change from the average person as well as from the average person as well as the person subject to the expression, so it is difficult to objectively determine its meaning.

The term “pro-North Korea” cannot be viewed as a factual expression solely on the ground that the term “pro-North Korea” was used, and as a result, there is room to regard it as a simple expression of opinion as a head of an investigative department to criticize the political behavior or attitude taken by the person who became the object of the expression (see the above en banc Decision).

(B) Examining the following circumstances revealed through the reasoning of the lower judgment and the evidence duly admitted in light of the aforementioned legal principles, it is reasonable to view that even if the Defendant’s expressive act includes the Defendant’s expression “pro-North Korea”, it is merely an expression of opinion or doubt on the Plaintiff’s political ideology, and thus, it does not constitute tort or illegal. ① ① The phrase “pro-North Korea” included in the instant expressive act is the expression “pro-North Korea” that was included in the instant expressive act. There is room to criticize the Plaintiff’s political behavior or exaggeration of the Plaintiff at the time of the E-dong regional election, which was a candidate for the N Party A market affiliated with the Plaintiff and BB who was a candidate for the Plaintiff and BA Party affiliated with the Plaintiff and BA Party, after the Plaintiff’s election into the A market, in accordance with the agreement on the candidate unification of the Plaintiff’s Party A, the Plaintiff’s organization and the Plaintiff’s appointment to the BA political party-related personnel, after the Plaintiff’s taking the A market position, and the Plaintiff’s political behavior or exaggeration raised in the Plaintiff’s political behavior at the time.

② At the time of the instant expressive act, the Plaintiff was a public figure as a member of a local government party, and the Plaintiff had expressed a political opinion, etc. on the controversy or suspicion raised in the press as above through an interview with usual I, AE, and various media media. In addition, in response to the expression “pro-North Korea,” during this process, the Plaintiff provided sufficient opportunity for citizens to be assessed through a mutual political public attack. As such, there was a need to raise a wide range of questions or suspicions about the Plaintiff’s political ideology.

③ In 209, the Defendant created the instant expressive act, “H,” which is a medium of news media, and worked as a representative, engaged in various media activities through contribution or accusation to other media or broadcasting regarding various political issues or policies, etc. At the time of the instant expressive act, there is room to deem that there was considerable reason to believe that the Defendant was true with the Plaintiff’s name of the instant expressive act as the Plaintiff’s intent to raise an issue regarding the Plaintiff’s political ideology. Nevertheless, the lower court recognized the Defendant’s expressive act as defamation or determined that its purpose was for public interest. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of tort liability under defamation, thereby adversely affecting the conclusion of the judgment. However, as to the instant expressive act, there is no need to review whether the Plaintiff’s tort liability is unlawful or not, on the ground that there is another ground that the Plaintiff’s expressive act, including the instant expressive act, cannot be deemed as tort liability for the reason that there is no public allegation or accusation.

B. As to the Defendant’s notice on the part concerning the Z players

On February 16, 2014, the lower court recognized that the Defendant posted the Defendant’s writing that “I have to write down the Z with a photograph of “AD’s AF flag on its account” in the BE market, etc., where I have driven the Z into AF, and that I have to write down the Z in history.” On the basis of this, the lower court recognized the Defendant’s act of expressing the Plaintiff as “I have to write down the Z in history with ‘I have to write down the Z, K, I have to write down the Z, I have to write down it in history.” Based on this, the lower court held that the Defendant’s act of expressing the Plaintiff as “I have the form and content of expressive act constitutes an insulting and anti-mar personal attack and thus constitutes a tort infringing on the Plaintiff’s personal rights, and thus, recognized the Defendant’s obligation to pay consolation money to the Plaintiff.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the establishment of tort liability due to infringement of personal rights, freedom of expression

2. As to the counterclaim

The lower court: (a) acknowledged that the Plaintiff posted the same article as the indicated in the judgment on the Plaintiff’s I or AE account from July 10, 2015 to July 11, 2015; and (b) held that such Plaintiff’s act constitutes an act infringing on the Defendant’s social evaluation as an act indicating facts about criminal punishment, which constitutes an act infringing on the Defendant’s social evaluation; (c) on the grounds as indicated in its reasoning, the lower court determined that even if the Plaintiff’s written notice differs from the truth or somewhat exaggerated expression in the details of the Plaintiff’s written notice, the illegality of the Plaintiff’s written notice constitutes an unlawful act consistent with the truth in its key part. In addition, the lower court did not err by deeming that the Plaintiff’s direct publication was an insulting expression that constitutes a tort, and that the content of the written notice cannot be deemed an insulting expression that constitutes a tort.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by failing to exhaust all necessary deliberations, or by misapprehending the legal principles on the establishment of tort liability due to defamation or infringement of personal rights, and the

3. Scope of reversal

The Defendant appealed to the entire part of the judgment of the court below against the Defendant, and there exist grounds for reversal as to the part against the Defendant regarding the present activity of this case. However, as the court below calculated the amount of consolation money to be paid by the Defendant, among the part against the Defendant, the expressive act of this case and the remaining part of the part against the Defendant in this lawsuit, it cannot specify the amount of consolation money due to the instant expressive act, the part against the Defendant in this case against the Defendant as to the principal

4. Conclusion

Therefore, the part of the lower judgment against the Defendant regarding the principal lawsuit is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Lee Dong-won

Justices Park Jung-hwa-hwa

Justices Kim Gin-soo