[1] In a case where a new defamation act occurred by a defendant who is a party to a lawsuit claiming compensation for damages caused by defamation after a judgment of the court of first instance was rendered, whether the existence of a ground for rejecting illegality should be newly determined at the time of the new defamation act (affirmative)

[2] In a case where a plaintiff who lost a claim for damages due to defamation was added to a new defamation act that the defendant committed after the judgment of the court of first instance without changing the purport of the claim in the appellate court, whether such act may be deemed a selective consolidation claim (affirmative), and whether the appellate court failed to render any judgment as to the above additional selective consolidation claim constitutes omission of judgment (affirmative)

[1] Whether the content of expression that defames another person’s reputation is true or has considerable reason to believe that it is true or not should be determined at the time of expression. Therefore, if there exists a new act of defamation by the defendant, who is the party to the lawsuit after a judgment of the first instance court was rendered on the ground of defamation action, then the existence of the grounds for rejecting illegality such as whether the content is true or not, or whether there is a reasonable reason to believe that it is true or not, should be determined at the time of the said new act of defamation in addition to the facts that serve as the basis for determining the result of the examination of evidence in the first instance trial

[2] If the Plaintiff, who was dismissed on the ground that the Defendant had a reasonable ground to believe the content of the claim, filed a claim for damages as to defamation before the judgment of the court of first instance, added the Defendant’s new defamation act after the judgment of the court of first instance to the ground of claim without changing the purport of the claim, such act would be deemed as a selective consolidation of the claim for damages arising from the Defendant’s new defamation act, barring any special circumstances. Therefore, the appellate court’s dismissal of the Plaintiff’s claim without making any judgment on the selective consolidation claim arising from a new defamation act constitutes omission of judgment.

[1] Articles 750 and 751 of the Civil Act / [2] Articles 750 and 751 of the Civil Act, Articles 253 and 423 of the Civil Procedure Act

[1] Supreme Court Decision 2005Da58823 decided Jan. 24, 2008 (Gong2008Sang, 355)

Seoul High Court Decision 200

Law Firm Jinju Co., Ltd. (Law Firm Sejong, Attorneys Lee Young-gu et al., Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2009Na35318 decided December 9, 2009

The part of the lower judgment regarding the Plaintiff’s Intervenor is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The facts admitted by the court of first instance as cited by the court below and the judgment thereof are as follows.

On January 31, 2006, the Plaintiff obtained a license for manufacturing the owner of the trademark “as, etc.” (hereinafter “owner of the instant lawsuit”). On January 14, 2008, the Defendant published an article to the effect that, on the basis of the content covered by the Defendant, the said article was unlawful for the manufacture license of the instant sub-production using the pro rata pro rata pro rata pro rata pro rata pro rata, using the pro rata pro rata pro rata pro rata pro rata pro rata as of March 7, 2006, under the title “(s) of “(s) of the first written public questioning about the acquisition of illegal licenses as to the owner of the instant lawsuit,” and that, on March 18, 2008, the Defendant posted an article on March 18, 2008, prepared to the effect that the said article was unlawful for the manufacture license using the pro rata pro rata pro rata pro rata pro rata pro rata (National Tax Service).

Although it is recognized that the Plaintiff’s reputation and credit were damaged due to the above act by the Defendant, in light of the circumstances as stated in its reasoning concerning the background leading up to the Defendant’s above act and the content and method of its expression, it is an act for public interest and at least there is a reasonable ground to believe that the content is true, and thus, illegality is dismissed.

B. In light of the records and relevant legal principles, the above determination by the court below is just and acceptable. In so doing, there is no error of law by misapprehending the legal principles as to the grounds for excluding the illegality of defamation.

2. Regarding ground of appeal No. 2

Whether the content of expression that defames another person’s reputation is true or whether there is a considerable reason to believe that it is true or not should be determined at the time of expression (see Supreme Court Decision 2005Da58823, Jan. 24, 2008). Therefore, if there is a defendant’s new defamation act after the court of first instance rendered a judgment in a lawsuit claiming damages based on defamation, the existence of grounds for illegality such as whether the content is true or whether there is a reasonable reason to believe it as true or not should be determined at the time of the said new defamation act, in addition to the facts that form the basis for determining the evidence examination result in the first instance trial procedure and the reasoning of the judgment in the first instance trial.

Meanwhile, if the plaintiff, who was dismissed on the ground that the defendant had a claim for damages as to defamation acts prior to the pronouncement of the judgment of the court of first instance on the ground that there was a considerable reason to believe the content of the claim is true, added the defendant to the ground of claim for new defamation acts arising from the defendant's new defamation acts after the judgment of the court of first instance without changing the purport of the claim in the appellate court, it would be deemed as a selective consolidation of the claim for damages arising from the defendant's new defamation acts, barring any special circumstances. Therefore, the appellate court's dismissal of the plaintiff's claim without

According to the records, on April 2009, after the decision of the first instance court of this case was rendered, the defendant stated the following as follows: "No. 1: "No. 1, 2009, to be withdrawn immediately as the wife manufactured," and the title "No. 1, 2009, E. . . . . .. .. .. ... .. .. .. .. .. .. .. .. ... .. .... ... ... ... ... ... .... .... .... .... ... .... ...... .... .......... 1) of this case, the plaintiff succeeding intervenor, who participated in the original trial, stated each of the above statements added to the cause of the claim."

In light of the above legal principles, the Plaintiff’s succeeding intervenor selected and joined the claim for damages caused by the Defendant’s defamation act committed after the judgment of the first instance court of this case was rendered. Therefore, the lower court’s accepting the judgment of the first instance without any determination as to the additional selective consolidation claim, and dismissing the claim of the Plaintiff’s succeeding intervenor, was erroneous by omitting judgment as to the selective consolidation claim, which affected the conclusion of the judgment. The purport of the appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the plaintiff succeeding intervenor is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)