2017No4234 Defamation

A

Prosecutor

Seafarers, and Domins Nos. (Public trial)

Law Firm Hatho

Attorney Park Young-chul et al.

Seoul Central District Court Decision 2017Gohap180 Decided November 3, 2017

July 13, 2018

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

① Of the facts charged: (a) the part that stated in the facts charged (i) that “Egs were without hearing the reasons for determining it as a material fact; and (ii) the part that stated as “H” is an article that stated as “H” (hereinafter referred to as “D 2015, Nov. 11, 2015”; and (iii) the article that stated as “G” as of November 2, 2015 is published in D 2015; and (iv) so, the relevant part is not included in D 2015 and Nov. 11, 2015; or it cannot be deemed that each of the above items stated as such. In so determining, the lower court erred by misapprehending the facts.

② The facts charged are (2) or (4) or (2) or (2) of the facts charged. (2) In light of the Defendant’s career, etc., who had been employed as T in the National Museum as a false fact, the Defendant should be deemed to have known that the above facts were false. Therefore, the lower court’s determination that the Defendant did not have awareness of the falsity of the above entries was unlawful.

In particular, the lower court determined that there was a justifiable reason for the Defendant to believe that, on the grounds that the Defendant reported articles of the same purport as AC articles of May 6, 2002 and AD articles of July 10, 2014, the Defendant’s facts charged: (a) the National Institute of Scientific Investigation on April 12, 200, the Korea Institute of Science and Technology Research and Research upon notification of the truth-finding; (b) the Defendant’s analysis of samples at the 1st National Institute of Scientific Investigation and Investigation, the Korea Institute of Science and Technology, and the Korea Institute of Science and Technology and Technology, etc. were true; and (c) the foregoing AC articles and AD articles should be deemed as materials covered by the Defendant; and (d) the Defendant should be deemed as having known that there was a lack of evidence appraisal and appraisal of the National Institute of Scientific Investigation on June 12, 2004, a document settled by the Defendant while working as TW at the National Museum of Science and Technology, and thus, the Defendant should be deemed as having known that there was a false description.

③ Inasmuch as the factual relations regarding F’s authenticity and controversy are closely related to the social assessment of the Deceased, the Defendant’s preparation of each of the instant articles, based on false facts as indicated in the facts charged, to the effect that F is not a forgery, constitutes defamation that undermines the social assessment of the Deceased.

B. Unreasonable sentencing

Considering the above circumstances, the judgment of innocence by the court below is unfair and the sentence like the original sentence should be pronounced.

2. Summary of the facts charged

A. On October 2015, the Defendant sent the content of E’F, which is a disturbance for writing into D’s “D (magazine) at the end of the end of the end of the month, to D’s “D” and reported respectively as the title “G” on November 2, 2015 and “H” on November 11, 2015.

The above advisers reported the Ferlime manufactured by the Atwitter on March 2, 1991, and notified the Etwits directly to the National Museum on April 2, 1991, and reported this to the media, and the F Case / Etwits asserted that the Etwits were de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto, and ② “This work has been corrected at least twice, and during this process, would have been corrected at least twice, and “I would have not deducted this work with the said work.” However, this case was included in the Court Decision, 4th April 12, 199, and “The Korea Advanced Institute of Science and Technology”.

그러나 사실은 ① 'F' 위작 논란 당시 E는 포스터만 보고 위작이라고 말한 것이 아니라 미술관 직원들이 가져 온 'F' 원작을 직접 확인한 후, 'F'가 위작이라고 생각하는 이유와 근거에 대해 충분히 설명하며 위작을 주장하였고, ② 1990. 1. I 발행의 'J' 중 K이 작성한 평론 부분에 게재된 'F'(게재명은 'L')의 편집과정에 E가 관여한 사실이 없어 'F'는 E가 중요하다고 판단해 직접 수록한 사진이 아니며, ③ E는 'F'가 위 작이라고 주장하며 언론 인터뷰를 하는 외에 별도의 법적 대응을 한 바 없어 법정까지.간 사실이 없을 뿐만 아니라, ④0 1991. 4. 13.자 국립과학수사연구소(現 국립과학수사 연구원)의 'F'에 대한 필적감정결과 회신은 "일반 필기구에 의한 필적이 아니라 화필로 기재한 필적으로써, 대조문자수도 부족하고, 기재할 때마다 변화점이 있으며 현재까지 이렇게 유화에 화필로 기재한 필적은 감정을 시행한 바가 없어서 대조 기준의 미정립으로 판별이 불확실하다는 내용이고, 1991, 4, 17.자 한국과학기술연구원(KIST)의 안료 분석결과 회신은 "샘플 5, 6(F)은 시료량 극소량으로 분석불가"하다는 내용이어서 각각 '진품'이라고 판단을 한 바가 없었다.

Accordingly, the defendant has damaged the reputation of E by openly pointing out false facts.

B. On November 2015, the Defendant: (a) delivered the flag adviser of the said clause to a Nartistic journalist at a place where he was not a policeman; and (b) ordered the said Nmer to report the article of the title “M press” on November 3, 2015.

The article contains the contents that "(1) the National Institute of Scientific Investigation, the Korea Institute of Science and Technology, etc. shall review the samples, analyze the results of the test, and then make a conclusion of the truth at some end," "E is a technique that appeared after the mid of the 80th century, and E did not use gold for the brue in the middle of the 70s."

However, the facts are as follows: ① there is no time to determine that “F” is a good in the National Institute of Scientific Investigation and Korea Institute of Science and Technology as described in the above paragraph (a) and ② E has used the tin debt of “P” (1977) and Q (1977) in the 1970s. Accordingly, the Defendant damaged the reputation of the deceased E by openly pointing out false facts.

3. The judgment of the court below

A. The part concerning the charge No. 1

According to evidence 19 (No. 176 of the Investigation Record), the content of the relevant part is recognized as being published in the article on November 2, 2015. However, it cannot be readily concluded that the content alone, without viewing the original as a reproduction, posted the content that only reported the art posters, a reproduction, and claimed F as a forgery.

(O) Part 3 of the latter part cannot be deemed to be included in the article as of November 2, 2015 and November 11, 2015.

B. As to the facts charged (2) through (4), (2) of the facts charged

○ The facts stated in the corresponding part are recognized to be all false.

However, considering the following circumstances, given that there are considerable circumstances to believe that the facts alleged as stated in the facts charged were true, the evidence alone submitted by the prosecutor alone cannot be acknowledged that there was an intentional perception or intent to indicate false facts to the Defendant.

○ As to the facts charged A. 2

① S, a full-time editing member of the J, sent five copies to the deceased, “J of 190,1.1. I” to the investigation agency, and the deceased stated that the facts F was published in the said J are not true (in the face of 402 pages of investigation records).

② On June 2004, the report related to the request for the report of the Free International Art Gallery on June 2004 stated that "the work (F) is in black and white, placed in the VE 2 in the chemical book (I and W) published in January 1990, which is confirmed at the stage of editing the work (the investigation record 116 pages)."

③ Publishing companies and editors in the process of their production shall closely examine and select the relevant writers and works, and then undergo the process of checking the selection of works and the printing status of the works to J. At the time of the J editing. The Defendant stated at an investigative agency that there was a straw of the above X, which was in charge of S’s support work, that the Defendant was directly displayed due to locating in the E-mail book (on the face of 801 pages of investigation records), and there is no evidence to support that the above statement is obviously false.

(1) As to the facts charged No. 3

The defendant also posted a notice to the effect that the court rendered a decision on the "F case" in the Internet bulletin, Z article, AA News article, and AB news, which are the data referred to at the time of the preparation of the instant flag adviser.

The article of May 6, 2002, which was a referenced by the Defendant at the time of preparing the instant flag adviser, posted the following facts: “F” on the article of the AC of May 10, 2014, “F was under review at the place of the National Institute of Scientific Investigation and Research and the Korea Institute of Science and Technology,” and “F was under review at the place of the IF and the Korea Institute of Science and Technology,” respectively.

○ As to the charge No. 2

① The Defendant argued that “the Defendant was colored when she seen the glusor of a man in the late 1970s that he had seen the glusor of the deceased’s glusor, and that the Defendant used the glusor in the color glusor, etc., in the late 1970s, he determined that the glusor was using the glusor and glusor in the glusor, etc., and that there was a difference between the deceased’s late 1980s and the gold actually used the glusor’s gold, so the glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s glusor’s g.

② Meanwhile, at an investigative agency, AE made a statement that “the deceased used gold in the process of treating the stude at all times at the time of the string of the string of the string of the string of the 1970s.” (In the investigation record 350 pages), the work of the deceased attached as the supporting material of the 1977 small Q(Investigation Records 195 pages) and 1977 small P(Investigation Records 196 pages). However, there is also no evidence to acknowledge that the Defendant had examined the string of the string of the string of the string of the string of the 1970s.

4. Judgment of the court below

A. As to the part concerning the charge No. 1

(1) The facts charged in the first part of the facts charged are as follows: (a) under the premise that the contents of the article in question are defamation against the deceased as they are or were reported to the article in D 1, 2, and 11 November 3, 2015, the article in question, which was recorded in D 1, 2015 under the Defendant’s responsibility; and (b) under the premise that the contents of the article in question were recorded in D 1, 2015, and M 11, 2015, it can be discussed as to whether the article in question was recorded in the article in question, and the contents that were not reflected in D 1, 2, 100, and 1,000 are not included in D 1, 2,000,000,000 won and 1,000 won and 1,000 won and 2,000 won and 1,000 won and 2,000 won and 2,00 won.

(2) Facts charged A. (1) The latter half of the facts charged

According to each description of the evidence No. 21 and the evidence No. 13-2 of the defendant's submission, the facts charged

A. According to the testimony, etc. of U.S. witness of the court below to the effect that the part in the latter part is included in D 2015, Nov. 11, 2015, and the part in the report was included in D 2015. Meanwhile, the Defendant asserted that the part in the report was not written by the Defendant but voluntarily added by U.S., but that the contents of the report are not included in U.S. 7 (U.C.). However, even if the contents of the part in question are not included in the Defendant’s submission certificate, the Defendant sent the second adviser separately from the first adviser, and published them in D, to the extent that the original part does not damage the original part. Thus, it is reasonable to view that the part in the report in question, which was written on Nov. 11, 2015, is not written by U.S. but written under his responsibility.

○ Meanwhile, even if the expression used in criticism or writing of another person’s speech takes the form of describing specific facts that can be proven by evidence, it cannot be deemed as a statement of fact in the crime of defamation if it is understood that the part at issue from an average reader’s perspective actually falls under an ordinary reader’s subjective opinion. However, if it is understood that the expression was used as a means to emphasize one’s own opinion, it cannot be deemed as a statement of fact in the crime of defamation (see, e.g., Supreme Court Decision 2016Do19255, May 11, 2017). In full view of the following circumstances recognized by the lower court and the first instance court through an investigation duly adopted pursuant to such legal doctrine, the part at issue is merely a subjective argument of the Defendant’s assertion that “F at the time of the debate” and the Defendant’s assertion that it was not a subjective argument that it was not discussed.

① In the event that there was no discussion about the authenticity of the work between the appraiser and the author, and the controversy about the authenticity of the work would have been expanded if the work had undergone such a process, it shall be interpreted as a door written in the purport that the work would have been able to make a reasonable conclusion.

② A description of the circumstances cited by the author as the reasons for the writing is written in this series of literature, and a description that “the author argued that the author is only a losophical work,” if the author reads the relevant article, can be seen as not being true by itself. The position of a woman as to the above reasons for the writing, as cited in the relevant article, is also introduced in detail.

3 The expression in question points out that there was a reasonable progress in the debate surrounding ‘F' as a whole, and the defendant claiming ‘F' as a truth in the process should be viewed as an expression stating his opinion on the grounds that the F cannot be seen as a 'F''s credibility of the statement.

(3) Sub-decisions

As seen earlier, the lower court partially erred in its fact-finding, but as a result, the conclusion of the lower court’s decision that the deceased did not constitute defamation is justifiable.

B. As to the part concerning the charge No. 2

(1) According to the evidence No. 13-1 of the defendant's submission document No. 13-1, the part "It is deemed that the author will have discussed with the editor because he judged that the author's works are important among his works," is found to have been published in the article No. 450, Nov. 2, 2015, but the remainder is, i.e., "if the author had seen correction at a minimum number of times, why the E in this process would not be deducted is included in the article, but is not included in the article, and therefore, it is determined only in the above part contained in the article.

(2) The expression of fact in the crime of defamation refers to a report or statement of a specific past or present fact in time and space, and the content thereof can be proven by evidence, as a concept substitute for an expression of opinion with respect to a value judgment or evaluation. The distinction between whether a statement is a fact or an opinion should be made by taking into account the ordinary meaning and usage of the language, the possibility of proof, the context in which the expression at issue was used, the social situation in which the expression was made, etc. (see, e.g., Supreme Court Decision 2016Do19255, May 11, 2017).

Examining the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the trial court, namely, ① the words used in the pertinent part (or the comments from the editors) and its contents, the pertinent part can be seen as a subjective opinion based on the Defendant’s abstract, not a statement of fact-related facts, ② as the court below explained in the part on the determination of whether the author was false or not, appears to be sufficiently able to present if the defendant could not know the fact that the author did not participate in the judicial editing process, ③ since the above controversy, it appears that the situation in J was known that the "F" was included in J, but it appears that the author or his bereaved family did not appear to be a subjective reply to the pertinent part of the crime of defamation until the commencement of the investigation (Article 14-8, No. 14-8, No. 13, Apr. 13, 191).

C. As to the part concerning the facts charged No.3

The court below determined that the pertinent part constitutes a case in which false facts are stated, but that there is no perception or intention of the defendant with regard to such falsity. In light of the evidence duly adopted and examined by the court below and the court below compared with the records of this case, the judgment of the court below on this part is justified.

D. According to the facts charged under paragraphs (1) (4) and (b) (i) of this Article, the article of the article of the Korea A.I.D. and evidence No. 13-2 of the evidence submitted by the Defendant was published on Nov. 3, 2015. The article of the article of the Korea A.I.D. includes the article of the article of the Korea A.I.D. Research Institute and the Korea A.I.D. and the article of the article of the article of the Korea A.I.D. and the article of the article of the Korea A.I.D. and the article of the article of the article of the Korea A.I.D. and the article of the article of the article of the Korea A.I.D. and the article of the article of the article of the Korea A.I.D. contain the article of the article of the article of the article of the Korea A.I.D. and the article of the article of the article of the Korea A.I.D. and the article of the article of the Korea A.I.I.D.I.D.

On the other hand, the facts charged. (b) The following circumstances acknowledged by the lower court and the first instance court’s evidence duly adopted and examined, i.e., the expression of the relevant part of the case is not meaningful that the National Scientific Investigation Institute of Korea and the Korea Advanced Institute of Science and Technology conducted an analysis of the results of investigation conducted around April 191, 191, and that BV made an analysis of the truth after it was arrested as a crime of forgery of other art articles in the course of investigation into the crime of forgery at around 1999; (2) The expression of the relevant part of the case was not stated in the first 7-year appraisal report prepared by the Defendant (No. 206, Defendant evidence submission No. 7) and the first 1-year appraisal research institute’s presentation of the evidence at the time of the 1-year appraisal and inspection; (3) there were no controversy over the content of the evidence inspection conducted by the National Research Institute of Science and Technology at the time of the first 1-year appraisal and inspection of the relevant part of the case.

E. As to the charge No. 2

The following circumstances acknowledged by evidence duly adopted and examined by the court below and the trial of the court below, i.e., (i) the statement in the corresponding part is that BV reversed the initial statement about the time of 'F' and forged the ‘F' at the end of the 1970s, and it is a statement made by the defendant that 'F has used gold in the eye of the man, but she has colored with low straw,' and that it is a statement made by the defendant to impeachment the credibility of BV's statement about the F production (i.e., the defendant's use of gold in the snow in the late 1980s after the 1980s, it is hard to view that BV was a false statement after the late 1980s because it was hard to view that it was a false statement made by the prosecutor, and (ii) it was not reasonable to view that it was a false statement made by the prosecutor as a result of the observation of the deceased's material in the interrogation process, and it can not be viewed that it was a false evidence that it was used by the prosecutor.

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge and the judge;

Judge Choi Jong-chul

Judges Kim Jae-sung.

(4) The first date of the fourth trial of the lower court, which became final and conclusive as being serious by undergoing scientific appraisal in the KIT.

A change has been made in the indictment that changes the contents in the indictment in "I have not made."

2) “The F Pluter manufactured by the Art Master on March 2, 1991” means the direct appraisal by E Pluter, and the coloned in the Free International Museum on April 2, 1991.

“F......., upon reporting by the media”

3) Embags asserted that Embags were ex officio ex officio, without having to make a reply against Embags as a truth.

4) In other words, there is no evidence to prove that the Defendant had already known that the Deceased had used gold in the late 1970s.

(c)

5) In relation to the facts charged A. (a) and the facts charged, the original facts charged were written only "D 201,12.12.2." However, the article in question contains "Egradation" as the articles in question.

The reasons for the determination are not stated, and the part that stated that it was an ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto ex post facto.

As pointed out, it is true that the two companies included the article "D's article on November 11, 2015" in the facts charged through amendments to indictment.

6) The Defendant’s advisory advisers (No. 206, No. 7, the same as the Defendant’s submission of evidence) submitted by the Prosecutor’s Office are 2015, 11, and 2, and advisory advisers on November 1, 2015, and

In the original text, reference materials, etc. were given to N reporters, and such reference materials are not indicated in the said reference materials.

The expression described in the reporters of Nov. 11, 2015 is considered to be a part produced voluntarily in this compilation process, which is an editor, but the said certificate is presented.

In addition to evidence No. 206 and evidence No. 7 submitted by the defendant, the materials constituting the original text of adviser on November 11, 2015 were not separately submitted. Thus, the defendant was not separately submitted.

It is not directly confirmed whether the relevant expression is contained in the original text of an adviser prepared for the article 11,11.

7) “E in the past of the truth, E in the course of the truth appraisal was the same as the great and symbol of the culture and arts community at the same time. At the time, the BS Appraisal Board will comply with the table.

If it was clear, it would have been a problem that would have been solved at that time. However, it was not possible for the appraisal committee to do so. All of the appraisal committee members remain in E in this so-called E insane.

The reason why the relationship has been maintained is that he only expected to change the words. So, the result of the fact that it is a good is the last one.

설명하기 위해 E 화백 댁을 방문했지만 만날 수 없었다. E 화백은 진품으로 판단한 이유를 들은 바 없고, 그에 대한 반론도

‘Unless otherwise, I asserted that it is an misappropriation only.’

8) However, in the article of MM press, "this author has appraised three times and has conducted scientific appraisal in the National Institute of Scientific Investigation and Research and in the KIT."

The phrase "whether it was not confirmed as a good through B," has been inserted, but it was deleted from the original charge.