[1] The person who bears the burden of proving “false perception”, which constitutes the elements of defamation under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (=the prosecutor)

[2] The criteria for determining whether "the purpose of slandering people" under Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the relationship with "the public interest"

[3] In a case where the Defendant, a tax official, was indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. by harming the reputation of Party A by putting a false sign with a view to slandering Party A by the Commissioner of the National Tax Service’s knowledge management system, the case affirming the judgment below which found the Defendant not guilty on the ground that it is difficult to view that the Defendant had “false awareness” and “non-purpose” in light of all the circumstances

[1] Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., Article 308 of the Criminal Procedure Act / [2] Article 70(1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [3] Article 70(1) and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc

[1] [2] Supreme Court Decision 201Do1147 Decided June 10, 201 / [1] Supreme Court Decision 2009Do4949 Decided October 28, 2010 (Gong2010Ha, 2219) / [2] Supreme Court Decision 2005Do5068 Decided October 14, 2005, Supreme Court Decision 2009Do12132 Decided November 25, 201 (Gong201Sang, 70) Supreme Court Decision 201Do17173 Decided July 14, 2011

Defendant

Prosecutor

Attorneys Kim Jong-ho et al.

Gwangju District Court Decision 2010No1068 Decided August 10, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on false awareness

In order to establish defamation by publicly alleging false facts through an information and communications network under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Act”), the fact should be deemed to be false, and the defendant should be aware that the facts are false in publicly alleging such facts, i.e., awareness of such false facts, the burden of proof for the criminal intent is borne by the prosecutor (see Supreme Court Decision 2009Do4949, Oct. 28, 2010, etc.).

Examining the reasoning of the judgment below in light of the records, we affirm the judgment of the court below that it is difficult to find the defendant that there is a false perception of the contents stated in this case's text for the reasons stated in its holding. There is no error of law by misapprehending the legal principles regarding false awareness in the crime of defamation by publicly expressing false facts through information and communications networks, or by exceeding the bounds of the principle of free evaluation of evidence.

2. As to the ground of appeal on the purpose of slandering

"Purpose of slandering a person" as provided in Article 70 (1) and (2) of the Act means requiring an intention or purpose of defamation. Whether a person is intended to defame a person should be determined by comparing and balancing the content and nature of the relevant alleged fact, the scope of the counter-party to whom the relevant fact was published, and the degree of infringement of reputation that may be damaged or damaged by the expression itself, with a view to comparing and balancing the degree of such expression. In addition, the purpose of slandering is in conflict with that of an actor’s subjective intent, as the alleged facts conflict with that of the public interest, barring any special circumstance, if the alleged facts are related to the public interest, it is reasonable to deem that the objective of slandering a person is denied unless there is a special circumstance. Here, the phrase “case involving a timely statement” is related to the public interest, and an offender should also be deemed to have expressed the fact for the purpose of subjective public interest. Whether the offender is widely related to the public interest of the State, society, and the general public interest, and whether the victim is objectively aware of the motive or public interest in the entire public interest.

The court below held that the defendant could not be deemed to have a purpose of slandering the defendant in light of the circumstances as stated in its holding, such as the main motive, status and behavior of the victim, and degree of infringement of honor, etc., on the Korea National Tax Service's knowledge management system of the National Tax Service, which is an information and communications network, as the information and communications network "Samad", by taking into account the aforementioned circumstances. In light of the above legal principles, the court below's above recognition and judgment is justifiable, and there

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)