[1] The degree of "statement of fact" necessary for the establishment of defamation crime

[2] In a case where the Defendant was indicted on charges of impairing the honor of the members of the head of the relevant branch office or its branch office by sending text messages that slandered Party A who was elected as the head of the Gun through the 5th nationwide local election, as if the messages were sent by the branch office of the competent district public prosecutor's office, the case holding that the lower court erred by misapprehending the legal doctrine, even though it cannot be deemed that there was a statement of specific facts sufficient to undermine his social value or evaluation

[1] In order to establish the crime of defamation, a statement of fact must be made, and the alleged fact should thereby be made to the extent that the social value or evaluation of a specific person is likely to be infringed. In addition, in order to establish a statement of specific facts sufficient to reduce the social value or evaluation of a specific person, such specific facts are not necessarily required to be specified directly, but at least, such facts should be inferred immediately by a specific phrase among the stated contents.

[2] The case holding that the judgment below erred in the misapprehension of legal principles as to defamation facts, etc. in the crime of defamation, in case where the defendant's text message as stated in the facts charged merely appears to the purport that "the head of the branch office or the members of the branch office of the branch office of the branch office of the district public prosecutor's office concerned is bound by the violation of the Public Official Election Act, after hearing the complaint that the driver Eul who was elected as the head of the Gun in the fifth regional election of the 5th regional government office was arrested, and where the defendant sent text message that slanders Gap as if he published the investigation status of Eul or the facts of the crime against Eul or the facts of the crime against Gap, and it does not seem that the fact that "the head of the branch office or the members of the branch office of the branch office inform the same contents" in the contents of text message even if considering the situation where the defendant posted false phone number omitted.

[1] Article 307 of the Criminal Code / [2] Article 307 (2) of the Criminal Code

[1] Supreme Court Decision 93Do696 delivered on June 28, 1994 (Gong1994Ha, 2145), Supreme Court Decision 2003Do1868 Delivered on June 24, 2003 (Gong2003Ha, 1655), Supreme Court Decision 2004Do4573 Delivered on June 15, 2007, Supreme Court Decision 2006Do5924 Delivered on October 26, 2007, Supreme Court Decision 2009Do687 Delivered on September 24, 2009 (Gong2009Ha, 1810)

Defendant

Defendant and Prosecutor

Law Firm Future Law Firm, Attorneys Lee Jae-chul et al.

Busan High Court (Chowon) Decision 2011No5 decided May 24, 2011

The guilty part of the judgment of the court below is reversed, and that part of the case is remanded to Busan High Court. The prosecutor's appeal on the acquittal part is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

The crime of defamation requires a statement of fact in order to establish the crime of defamation, and the statement of fact must be made to the extent that the social value or evaluation of a specific person is likely to be infringed (see, e.g., Supreme Court Decisions 93Do696, Jun. 28, 1994; 2003Do1868, Jun. 24, 2003); and in order to establish a statement of specific fact sufficient to undermine the social value or evaluation of a specific person, such specific fact does not necessarily require a direct statement of fact, but it should be made to the extent that it can be promptly inferred by a specific phrase among the stated contents (see Supreme Court Decision 2004Do4573, Jun. 15, 2007).

이 부분 공소사실의 요지는, “피고인은 제5회 전국동시지방선거에서 ○○군수로 당선된 공소외 1 후보의 운전기사였던 공소외 2가 공직선거법 위반죄로 구속되었다는 소문을 듣게 된 것을 기화로, 사실은 공소외 2가 공소외 1의 보좌관이 아니고, 창원지방검찰청 △△지청장 또는 △△지청 구성원이 기자들에게 문자를 보내는 방법으로 공소외 2에 대한 수사상황이나 피의사실을 공표한 사실이 전혀 없음에도, 공소외 1을 비방하는 내용의 문자를 △△지청에서 발신하는 것처럼 가장하여 보내기로 마음먹고, 2010. 11. 21. 15:18경 경남 (이하 생략)에 있는 피고인의 주거지에서, 컴퓨터를 이용하여 주식회사 케이티에서 운영하는 문자메시지 대량발송이 가능한 통합메시지서비스인 크로샷닷컴사이트(www.xroshot.com)를 통해 경남일보 기자인 공소외 3 등 8명의 기자들에게 발신번호가 △△지청(지청장실: 전화번호 1 생략)인 것처럼 허위의 발신번호를 게재하여 마치 △△지청장 또는 △△지청 구성원이 공소외 2에 대한 수사상황과 피의사실을 미리 알려주는 것처럼 ‘발신번호: 전화번호 2 생략/11. 20. △△지청, ○○군수 보좌관 공소외 2 멸치 500포 살포혐의 구속, 이 군수 집중 조사 중’이라는 허위 내용의 문자를 발송함으로써 공연히 허위의 사실을 적시하여 피해자인 창원지방검찰청 △△지청장 또는 △△지청 구성원의 명예를 훼손하였다.”는 것이다.

However, the instant text message as indicated in the facts charged merely appears to the purport that “the head of △△ branch office or a member of △△ branch office shall arrest Nonindicted 2 and investigate this head,” and it cannot be deemed that “the head of △△ branch office or a member of △△ branch office shall inform the same content.” Even when considering the situation where the Defendant posted a false phone number omitted the phone number at the end of the head of △△ branch office, it does not immediately seem that the instant text message’s content that “the head of △△ branch office or a member of △ branch office shall inform the same content.” In fact, according to the records, it can be known that the majority of the reporters who received the instant text message, stated that they were unaware of who sent the instant text message. Accordingly, even if the other party who received the instant text message could not be inferred that the head of △ branch office or the member of △ branch office sent the instant text message based on the similarity of the phone number, such possibility alone alone does not sufficiently undermine the social value or assessment of the members of △ branch office.

Nevertheless, the lower court determined that the Defendant’s act of sending the instant text messages solely based on its stated reasoning was a statement of facts of a nature likely to undermine the social assessment of the personal value of the members of the head of △△ branch or △△ branch office, which affected the conclusion of the judgment by misapprehending the legal doctrine on the statement of facts in the crime of defamation. The allegation contained in the grounds of appeal on this point is

2. As to the ground of appeal on the acquittal portion by the prosecutor

Examining the reasoning of the judgment below in light of the records, it is just for the court below to hold the defendant not guilty on the charge of violation of the Public Official Election Act, defamation against Non-Indicted 4 and accusation against Non-Indicted 4 among the facts charged in this case, and there is no violation of law of logic and experience and free evaluation of evidence.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part of the judgment of the court below which found the Defendant guilty is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal on the acquittal portion is dismissed. It is so decided as per

Justices Jeon Soo-ahn (Presiding Justice)