The meaning of “suspected facts” in the crime of publishing the suspected facts, and the standard for determining whether the alleged facts have been publicly announced or not a simple opinion has been expressed.

Article 126 of the Criminal Act, Article 751 of the Civil Act

Plaintiff 1

Plaintiff 2 and three others (Attorney Seo Chang-il, Counsel for the plaintiff-appellant)

Defendant 1

Republic of Korea (Law Firm LLC, Attorneys Kim Yong-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na79281 decided May 29, 2009

All appeals by the plaintiffs and Defendant Republic of Korea are dismissed. The costs of appeal are assessed against each appellant.

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

1. Regarding the plaintiffs' grounds of appeal

A. As to the misapprehension of the legal principle as to the publication of the suspected facts

The crime of publishing the suspected facts is established when a person who performs, or supervises, the duties related to the prosecution, the police, or other duties related to the criminal investigation, or a person who performs, or assists in, such duties, discloses the suspected facts that he/she had become aware of in the course of performing his/her duties before the request for a public trial. The term "suspect facts" here means the facts suspected by the investigative agency and do not need to be specifically identified to the extent that it does not constitute a mere expression of opinion. However, the public announcement of the suspected facts cannot be said to have made public the suspected facts to the extent that it does not constitute a mere expression of opinion. The determination shall be made by comprehensively taking into account the overall circumstances, such as the ordinary meaning and usage of the language, the place where the pertinent remarks

The court below determined that Defendant 1’s remarks in this case cannot be deemed as publication of the fact, taking full account of the following circumstances: (a) the motive and the opportunity for the captain of the Joseon Daily to find Defendant 1 and Defendant 1’s intention to resign from the position of the Director of the National Intelligence Service at the time when he already reported to the Plaintiffs on the fact that he was under investigation due to the suspicion of a counter-espionage under the National Security Act, etc.; and (b) the position, attitude, the entire contents of the interview, and the process and context of the interview, as seen in the instant case, and the whole contents of the interview, and the contents of the relevant articles published in the Joseon Daily, and the specific contents of the speech in this case, etc.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is justified that the court below rejected the plaintiffs' claim for damages on this part by deeming that Defendant 1's remarks in this case did not constitute publication of the alleged facts, and therefore, it is therefore justified. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles on publication

B. As to the misapprehension of legal principle as to defamation by publication

The lower court rejected the Plaintiffs’ claim for damages on the grounds of defamation by publication against the Defendants, on the grounds as indicated in its reasoning, on the following grounds: (a) the Plaintiffs were indicted on the charges of espionage under the National Security Act, and the first instance court found the Defendants guilty on the charges of espionage by certain Plaintiffs; (b) the appellate court rendered a judgment not guilty on the charges of constituting and joining the dual organization of the Plaintiffs; (c) the Plaintiffs were acquitted on the grounds that they were found to have a different nature under the National Security Act, but did not have a dual nature as an organization; and (d) it is difficult to deem that there was a perception of false facts with regard to Defendant 1 at the time of the instant statement, or that there was

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on defamation.

C. As to the misapprehension of legal principles as to the duty of supervision of public official supervisor and the scope thereof

The lower court rejected Plaintiff 1’s claim for damages against Defendant 1 on the ground that there is insufficient evidence to support that Defendant 1 could not prevent the instant eviction from being intentionally or by gross negligence despite the National Intelligence Service investigator’s escape disposition.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the duty of supervision and its scope

D. As to the misapprehension of legal principles as to the meaning and scope of the right to assist counsel

The lower court rejected this part of the Plaintiffs’ claim for damages against the Defendants on the grounds that there is no evidence to support that the Defendants suffered emotional distress by obstructing the National Intelligence Service or the Prosecutor’s Office from exercising their defense counsel’s meeting and communication right at the time of investigation.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the meaning and scope

2. As to Defendant Republic of Korea’s ground of appeal

The court below acknowledged that the National Intelligence Service investigator and the prosecutor denied the above defense counsel's application for interview on the ground that the defense counsel, when the plaintiff 1 under investigation, recommended the plaintiff 1 to exercise the right to refuse to make statements, or that there is a considerable reason to suspect that the plaintiff 1 was subject to the non-party 2 as an accomplice in the crime. However, it is insufficient to recognize that these counsel's acts abuse the counsel's position as counsel and interfere with the investigation or the detention investigation system by abusing the right to contact and communication, and thus, it is not sufficient to recognize that the above attorney's act was conducted with the intent to obstruct the investigation or to punish the investigation system by abusing the right to contact and communication. Thus, the court below held that the disposition of

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the negligence of public officials under Article 2

3. Conclusion

Therefore, all of the plaintiffs' appeals and defendant Korea's appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)