[1] Where an act of expressing false facts without specifying the victim's name constitutes defamation

[2] The degree of a statement of fact necessary for the establishment of the crime of defamation and the standard for determining whether a statement of fact constitutes defamation

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

[1] Supreme Court Decision 82Do1256 delivered on November 9, 1982 (Gong1983, 129) Supreme Court Decision 2000Da68306 Delivered on May 10, 2002 (Gong2002Ha, 1352) / [2] Supreme Court Decision 2007Do5077 Delivered on October 25, 2007

Defendant

Defendant

Attorney Cha Han-young

Seoul Central District Court Decision 2009No164 Decided August 12, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the facts charged and the judgment of the court below

가. 이 사건 공소사실 중 허위사실 적시로 인한 명예훼손의 점에 관한 공소사실의 요지는, 「피고인이 2008. 6. 29. 20:44경 군포시 (주소 생략)아파트 (동호수 생략)에서 노트북 컴퓨터를 이용하여 인터넷 라디오21＆TV 사이트에 접속한 다음, 촛불아 모여라!! 2008년 6월 촛불의 역사 생방송 게시판에 글쓴이를 ‘지쳤습니다’로 하여 ‘서울특별시 제2기동대 전경대원입니다’라는 제하에 “저희 전경들은 지칠대로 지쳤습니다. 이젠 더 이상 공소외 1의 개노릇 하고 싶지 않습니다. 상부에서는 계속 시민놈들을 개 패듯이 패라는 명령만 귀따갑게 명령이 내려오고 있습니다. ··· 우리가 누구를 위해서 이 짓을 하고 있어야 하는지 모르겠습니다. 저희 전경도 광우병 쇠고기 절대 먹고 싶지 않습니다. 그러나 급식으로 나오면 무조건 쳐먹어야 합니다. 저희들 전경은 제대하여 광우병 걸리고 싶지 않습니다. ··· 저희 전경은 완전 지쳤습니다. 하여 오늘 자정을 기하여 저희 서울특별시 경찰청 소속 제2기동대 전경 일동은 시민진압 명령을 거부하기로 결정하였습니다. 오늘 자정부터 서울특별시 경찰청 소속 제2기동대 전경 일동은 상부의 명령을 무조건 거부할 것입니다”라는 내용의 이 사건 글을 게시하고, 이 사건 글의 내용이 라디오21 사회자로 하여금 생방송 멘트로 소개되도록 함으로써 공연히 허위의 사실을 적시하여 공소외 2, 3 등 서울경찰청 제2기동대(이하 ‘이 사건 기동대’라고 한다) 소속 전경들의 명예를 훼손하였다」는 것이다.

B. As to this, the lower court found the Defendant guilty of this part of the facts charged as to defamation due to the statement of the remaining false facts, except for the part against the victim Nonindicted 2, who expressed his intention not to punish him, on the ground that the Defendant undermined the reputation of the former police officer belonging to the instant police team through this case.

2. Judgment of the Supreme Court

A. As to whether the facts charged are specified

(1) The purport of the law that allows the court to specify the facts charged by specifying the time, place, and method of a crime is to limit the object of a trial against the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. Thus, it is sufficient to consider these elements to the extent that the facts constituting the crime can be distinguished from other facts. Even if the date, time, place, method, etc. of a crime are not specifically indicated in the indictment, it does not go against the purport of the law that allows the specification of the facts charged as above, and if it is inevitable in light of the nature of the crime charged, the indictment cannot be deemed unlawful because the contents of the indictment are not specified (see Supreme Court Decision 2004Do4896, Oct. 12, 206, etc.). Meanwhile, in order to establish the crime of defamation, since the statement of false facts without the person's name is not necessarily required to clearly indicate the facts, and if it is possible to identify a specific person's category by judging the surrounding circumstances and comprehensive contents of the expression, it constitutes defamation against the specific person.

(2) Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, the facts charged as to defamation caused by the assertion of false facts among the facts charged in the instant case can be seen as stating that "the victim was a prior factor belonging to the second platform of the Seoul National Police Agency, including Nonparty 2 and 3," and as such, only "Nonindicted 2 and 3," among the victims, only their names are specified, but the specific names of the rest victims are not specified. However, the time and place of the crime, the contents and methods of the crime, etc. are indicated in detail, and even if it is not always impossible for the Defendant to clearly specify the previous platform belonging to the same platform as the victim of defamation at the time of posting the instant article on the Internet, considering the fact that it is inevitable for the Defendant to comprehensively indicate it as the victim, this part of the facts charged does not interfere with the Defendant’s exercise of defense right by limiting the scope of the object of trial against the court and specifying the scope of defense.

(3) Therefore, the lower court’s determination that this part of the facts charged was specified is justifiable, and it did not err by misapprehending the legal principles as to the specification of the facts charged, as otherwise alleged in the

B. As to the establishment of defamation

(1) According to the reasoning of the lower judgment, the lower court found the Defendant guilty of this part of the facts charged, on the ground that the facts stated in the instant text were false, thereby infringing on the social value or evaluation of the former police officers belonging to the instant police team.

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

In order for defamation to be established, a specific fact that is likely to infringe the victim's social value or evaluation should be publicly stated. Whether an expression is defamation should be determined by an objective evaluation in accordance with the social norms of the expression (see Supreme Court Decision 2008Do6728, Nov. 27, 2008, etc.).

This case’s text is based on false facts. However, it is difficult to view that the overall content of the order of suppression issued by the police department is illegal and the overall content of the order of suppression is an expression that objectively impairs the social value or evaluation of the previous police officers belonging to the police team. The purpose of the Defendant’s publication of this case’s article is not to impair the honor of the previous police officers who intend to suppress the assembly, but to encourage the participation of the general public to participate in the assembly. On the other hand, considering the general public’s perception and social belief, it is difficult to view that the existing social value or evaluation of each individual of the previous police groups belonging to the police team is fundamental change. Considering the content and purport of the above article, the purpose of posting and awareness of the general public, it is difficult to view that it constitutes a false expression or evaluation of the previous social value of the previous police officers belonging to the police team, even though it is difficult to view that it constitutes a false expression or evaluation under the Criminal Act.

Nevertheless, the lower court determined otherwise on the grounds stated in its reasoning that the Defendant’s act constitutes defamation. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of defamation, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

(3) Therefore, the lower court’s judgment that found the Defendant guilty of defamation by publicly alleging false facts is unlawful without examining the remaining grounds of appeal by the Defendant. As such, the part of the lower judgment regarding defamation by publicly alleging false facts cannot be maintained as it is.

3. Scope of reversal

As long as the part of the judgment of the court below is reversed, defamation due to the statement of false facts which the court below found guilty shall also be reversed together with the fact that the defendant violated the Framework Act on Telecommunications (not guilty part of the judgment of the court below) and defamation due to the statement of false facts as to the victim non-indicted 2 (Dismissal part of the reasons in the judgment of the court below). Thus, the whole judgment of the court below shall be reversed.

4. Conclusion

Therefore, the lower judgment is entirely reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)