In a factual case on a specific minority, whether it is necessary to prove the public prosecutor’s strict proof in order to acknowledge a public performance, which is the constituent element of the crime of defamation on the ground of the possibility of dissemination (affirmative)

Article 307 of the Criminal Act, Article 308 of the Criminal Procedure Act

Supreme Court en banc Decision 2020Do5813 Decided November 19, 2020 (Gong2021Sang, 57)

Defendant

Defendant

Present completion of Attorney

Cheongju District Court Decision 2015No131 Decided July 29, 2015

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court.

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

1. Facts charged;

On May 14, 2014, the Defendant, at the Defendant’s office around 08:41, the fact was the victim’s divorce, but was not the disabled, and Nonindicted 1, who was in de facto marital relation with the victim, did not bring about the victim’s wages to the victim by paying wages from the Defendant. However, the Defendant’s honor was damaged by publicly pointing out the fact that “The victim was fried and divorced, one of whom is the victim, and one of whom is the disabled.” However, Nonindicted 1 said that he would live in the future (hereinafter “the instant remarks”).

2. Lower judgment

The lower court affirmed the first instance judgment convicting the Defendant of having rejected the Defendant’s assertion that Nonindicted 2 did not have any public performance of the instant remarks, on the ground that Nonindicted 2 did not have any relationship to keep the content of the instant remarks confidential to protect the honor of the victim or to escape the Defendant from the Defendant’s legal responsibility.

3. Supreme Court Decision

A. Public performance is a constituent element of the crime of defamation, and a factual event against a specific minority may be deemed to have a serious reason to deny the public performance. Therefore, the prosecutor’s strict proof on the possibility of dissemination is necessary.

Where the other party to the statement has a private-friendly relationship, such as the speaker's or the victim's spouse, relative, or relative, or where a public official or a similar position is expected to maintain the confidentiality of duties or to process it, performance is denied as a case where the other party to the statement is considerably expected to maintain the confidentiality of such relationship or status. In such a case, where the speaker and the other party to the statement and the victim are in a special relationship, or where the other party has a special status or status in the performance of duties, there should be special circumstances to deem that performance can be disseminated to many and unspecified persons, regardless of such relationship or status (see Supreme Court en banc Decision 2020Do5813, Nov. 19, 2020).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

(1) Non-Indicted 2 was in close relationship with the Defendant as an elementary school, and it appears that Non-Indicted 1 was a driver of a tourist bus company operated by the Defendant, and that he did not know of the victim at all. The Defendant was only a victim who was in a de facto marital relationship with Non-Indicted 1 prior to the instant speech, and was not aware of the victim directly.

(2) Although the victim directly called the Defendant to receive money from Nonindicted 1 and asked him to pay wages to Nonindicted 1, the Defendant refused to do so. The Defendant received a telephone from the victim to the same purport even at the time of the instant speech, and Nonindicted 2, who was next to the victim, asked the victim about who was the other party to the telephone, and asked him about who was the other party to the telephone, and made the instant speech based on the content that Nonindicted 1 took place before Nonindicted 1 in the course of responding thereto.

(3) The place of the instant speech did not have any other person than Nonindicted 2 as the Defendant’s office. The time of the instant speech was long, and the Defendant and Nonindicted 2 continued to talk about other subjects without any particular reference to the victim.

(4) In the court, Nonindicted 2 stated that the instant speech was not made to another person. The victim recorded the instant speech in a state where the Defendant’s telephone was not cut off.

C. Examining the above facts in light of the legal principles as seen earlier, since the Defendant was only Nonindicted 2 at the time of the instant statement at the office, and this was a critical circumstance that might be denied performance, the prosecutor’s strict proof is necessary for the possibility of spreading the Defendant’s statement. Moreover, there is a special circumstance to deem that the Defendant’s statement may be disseminated to an unspecified or many unspecified persons in order to recognize performance on the grounds that the Defendant’s statement is considerably expected to have a high level of confidentiality in view of the pro-friendly relationship between the Defendant and Nonindicted 2. In light of the details and contents of the statement made before Nonindicted 2, it is difficult to deem that the said statement is likely to have been disseminated to an unspecified or many unspecified persons, or that the Defendant

Therefore, in order to determine the existence of the facts charged in the instant case, it should be carefully considered whether the Defendant’s remarks were highly likely to be disseminated to an unspecified or many unspecified persons, even though they were made before a specific minority, by examining various circumstances, such as the details and contents of the Defendant’s remarks to Nonindicted 2, the method and place of remarks.

Nevertheless, the lower court found the Defendant guilty of the facts charged without demanding the prosecutor’s certification or conducting any particular deliberation or determination on the circumstances that may recognize the possibility of performing and spreading the public performance. In so doing, the lower court erred by misapprehending the legal doctrine on the public performance of defamation, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of

4. Conclusion

The judgment of the court below is reversed without examining the remaining grounds of appeal, and 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 Lee Dong-won (Presiding Justice)