[1] The elements for establishing a legitimate act and self-defense

[2] Whether a harmful act committed during a fighting can be viewed as self-defense where the act at the same time constitutes a defensive act and has the nature of an attack (negative)

[3] The elements for recognizing that a person had expressed his/her intent not to punish a person for a crime of non-compliance with punishment

[4] The case holding that the act of posting a letter that defames others on the Internet bulletin board constitutes a crime of insult

[5] The meaning of public performance in the crime of defamation

[6] Admissibility of evidence of a protocol containing a full-time statement or full-time statement

[7] The case holding not guilty of the facts charged of defamation on the ground that the admissibility of evidence of the protocol containing the full statement cannot be acknowledged and the performance of the protocol is insufficient

[1] Articles 20 and 21 of the Criminal Act / [2] Article 21 of the Criminal Act / [3] Articles 260 (1) and (3), 307, and 312 (2) of the Criminal Act, Article 232 (3) of the Criminal Procedure Act / [4] Article 311 of the Criminal Act / [5] Article 307 of the Criminal Act / [6] Articles 310-2, 312, 314, and 316 (2) of the Criminal Act / [7] Article 307 of the Criminal Act, Articles 310-2, and 316 (2) of the Criminal Procedure Act

[1] Supreme Court Decision 92Do2540 delivered on December 22, 1992 (Gong1993Sang, 657), Supreme Court Decision 2003Do3000 delivered on September 26, 2003 (Gong2003Ha, 2132) / [2] Supreme Court Decision 200Do228 delivered on March 28, 200 (Gong2000Sang, 1123) / [3] Supreme Court Decision 2001Do1809 Delivered on June 15, 2001 (Gong201Ha, 1672) / [5] Supreme Court Decision 92Do445 delivered on May 26, 192 (Gong192, 2065) / [209Do409 delivered on April 36, 2004] Supreme Court Decision 2005Do8209 delivered on April 24, 2009

Defendant

Defendant and Prosecutor

Global General Law Firm, Attorney Lee Im-sung

Seoul District Court Decision 2003No3191 Delivered on July 30, 2003

Each appeal shall be dismissed.

1. As to the defendant's appeal

A. As to defamation

"Acts which do not violate social norms" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or social ethics or social norms in its hinterland. Whether certain acts constitute legitimate acts that do not violate social norms and thus, it should be determined individually by examining and reasonably the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the protected interests and infringed interests, the third urgency, the fourth urgency, and the fifth supplementary nature without any other means or method (see Supreme Court Decision 2003Do300, Sept. 26, 2003). In order to constitute legitimate defense under Article 21 of the Criminal Act, the act must be determined by taking into account all specific social circumstances such as the types of legal interests infringed by the act, degree and method of infringement, the degree of infringement and defense act, and the degree of infringement of legal interests and interests by the act of defense (see Supreme Court Decision 2002Do294, Feb. 29, 2092).

The court below held that the defendant's act of slandering the victim non-indicted 1 does not appear to have considerable social influence and propagation, such as reporters, broadcasting stations, and the director general of the bureau of editing the newspaper company, or that the defendant's act seems to have serious mental suffering and mental suffering from the defendant's act is likely to be serious. The defendant's act does not constitute legitimate self-defense in light of the legal principles as to the defendant's act as well as the relation with non-indicted 3, non-indicted 4, and his parents, non-indicted 5, and non-indicted 6, and other various circumstances such as the defendant's act of slandering the victim non-indicted 1, and the situation leading to the defendant's act of defamation in this case. Further, considering the above circumstances, the court below's determination that the defendant's act does not constitute legitimate self-defense and it cannot be seen that the defendant's act does not constitute legitimate self-defense in light of Article 20 of the Criminal Act's legal principles.

B. As to the crime of assault

Examining the judgment of the court below and the evidence of the court of first instance cited by the court below in light of the records, the court below's finding the defendant guilty of the assault against the victim non-indicted 2 on June 21, 2000 among the facts charged of this case is just and acceptable, and there is no error of law by misconception of facts against the rules of evidence.

In a case where it is reasonable to view that an act by a perpetrator was committed by an attacker rather than by defending the victim’s unfair attack, and that the attack was committed by being attacked first with the intent of attack, and the attack was committed against it, such act cannot be deemed as self-defense, since it is a defensive act and has the nature of an attack at the same time (see Supreme Court Decision 200Do228, Mar. 28, 200).

The court below held that the defendant's act does not constitute self-defense in light of all the circumstances indicated in the records of this case, including the fact that the non-indicted 2 was pregnant, the defendant was aware of such fact, the motive and circumstance leading up to the fighting, and the situation before and after the fighting, etc., it is reasonable to view that the defendant's act was in the nature of an attack as an active attack beyond the limit of the passive defense against the non-indicted 2's unfair attack. In light of the records in light of the above legal principles, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the crime of self-defense.

C. As to the existence of intention not to punish

In order to recognize that the victim expressed his/her wish not to punish or withdrawn his/her wishing to punish a person in a crime of non-violation of intention, the victim must express his/her wish in a way that it is obvious and reliable (see Supreme Court Decision 2001Do1809, Jun. 15, 2001).

The court below held on June 21, 200 that the defendant and the victim non-indicted 1 and non-indicted 2 expressed their intent to punish the defendant in the first instance court as to the above defamation and assault since they could not be deemed to have expressed their intent to punish the defendant in the above defamation and assault since they agreed that the non-indicted 1 would not defame the defendant in the future, but agreed that the non-indicted 1 would pay 8,386,000 won to the money acquired through various names from the defendant, and it cannot be deemed that the non-indicted 1 agreed that the non-indicted 1 would not be punished for the crime of defamation and assault in the first instance court. In light of the above legal principles, the fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the non-indicted 2's intention to punish the defendant in violation of the rules of evidence or the non-indicted 2's expression of intent to punish the facts against the rules of evidence.

D. As to the insult

Of the facts charged in this case, the court below held that the defendant's insult does not constitute a justifiable act under Article 20 of the Criminal Act in light of all the circumstances such as the motive and circumstance where the Internet bulletin board, which the defendant posted the article like the facts charged, was opened on the same website related to the victim non-indicted 1's occupation, that the characteristic of the Internet bulletin board itself has no responsibility and strong propagation due to the guarantee of anonymousness, that the defendant posted the article under the name of the same factor on the Internet bulletin board, and that the contents of the article posted the article in itself are nothing more than the public interest point to prevent the victim from becoming a victim, and that the defect in itself is nothing more than the public interest point of preventing the victim from becoming a victim, and that it does not constitute a justifiable act under Article 310 of the Criminal Act. In light of the provisions of Article 310 of the Criminal Act and the records, the judgment of the court below is justified, and there is no error in the misapprehension of legal principles as to the crime of insult.

Meanwhile, the offense of insult is sufficient to publicly indicate an abstract judgment that may undermine the external reputation of a person. As such, a third party is in a state where it can be recognized at the time of indication, and a third party is not necessarily required to be aware of it, and the victim does not require the victim to be aware of it. Therefore, the allegation in the grounds of appeal that the offense of insult is established only when the perpetrator faces the victim, cannot be accepted.

2. As to the prosecutor's appeal

In the crime of defamation, performance refers to the state in which many and unspecified persons can be recognized, so if there is a possibility of spreading facts to many and unspecified persons even if one person spreads the facts individually, the requirement of performance shall be satisfied. However, if there is no possibility of spreading any other fact, the spread of facts to a specific person shall lead to performance (see Supreme Court Decision 92Do445 delivered on May 26, 1992). In principle, a protocol containing a full statement or a full statement shall not be admissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, a full statement shall not be admissible in cases where the person who made the original statement is unable to make a statement due to death, disease, foreign residence, or other causes, and it is admissible exceptionally only when the statement is made under particularly reliable circumstances, and a protocol containing a full statement shall be admissible as evidence pursuant to the provisions of Article 312 or 314 of the Criminal Procedure Act, and it shall be admissible as evidence under the provisions of Article 316(2) of the Criminal Procedure Act.

원심은, "피고인이 2001. 5. 중순 일자불상경 서울 종로구 번지불상 소재 YMCA 청소년 사업부 사무실에서 공소외 7 및 수명의 성명 불상 동요작곡가들이 있는 자리에서 ' 공소외 1은 사기꾼이다. 출판비를 가로채고, 출판비나 제작비 명목이라며 거짓말하여 나로부터 많은 돈을 가로챘다.'라고 말하여 공연히 사실을 적시하여 공소외 1의 명예를 훼손하였다."는 공소사실에 대하여, 당시 위 장소에 공소외 7 외에 수명의 성명 불상 동요작곡가들이 있었다는 취지의 공소외 1에 대한 검찰 및 경찰에서의 각 진술조서의 기재는 공소외 1이 공소외 7로부터 피고인이 공소외 7와 수명의 성명 불상 동요작곡가들이 있는 자리에서 위와 같이 공소외 1을 비방하였다는 내용을 들었다는 것이어서 모두 전문증거에 해당하고, 공소외 1이 들었다는 공소외 7의 위와 같은 진술이 형사소송법 제316조 제2항 에서 규정하고 있는 특히 신빙할 수 있는 상태하에서 행하여졌다고 인정할 증거가 부족하므로, 위 각 진술조서는 수명의 성명 불상 동요작곡가들이 공소외 7와 함께 피고인의 공소외 1에 대한 비방을 들었음을 인정할 증거로 쓸 수 없고, 검사가 제출한 다른 증거들만으로는 공소외 7가 피고인으로부터 들은 말을 타인에게 전파할 개연성이 있다고 보기에 부족하고, 달리 이를 인정할 아무런 증거가 없다는 이유로, 이 부분 공소사실을 유죄로 인정한 제1심판결을 파기하고 무죄를 선고하였는바, 위의 법리에 비추어 기록을 살펴보면, 이와 같은 원심의 사실인정과 판단은 옳은 것으로 수긍이 가고, 거기에 채증법칙을 위배하여 사실을 오인하거나 전문진술을 기재한 조서의 증거능력 또는 명예훼손죄에서의 공연성에 관한 법리를 오해한 위법이 있다고 할 수 없다.

3. Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)