The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (based on factual errors and misapprehension of legal principles) does not necessarily mean that the Defendant’s speech to one person by telephone does not necessarily have any possibility of spreading, and E and F do not seem to maintain a special relationship with the victim C at present.

In addition, in light of the fact that the defendant is currently going to another person the contents stated in the facts charged of this case, it can be deemed that the defendant intentionally made the statement of this case, and it should be deemed that the defendant knew and accepted the possibility of spreading this case.

Nevertheless, the court below erred by misapprehending the legal principles or misunderstanding the facts which found the defendant not guilty.

2. Determination

A. As the court below decided in its application legal principles, performance refers to the state in which many, unspecified or unspecified persons can recognize the public performance in the crime of defamation, and even if the facts are distributed to one person individually, if there is a possibility of spreading them to many, unspecified or unspecified persons, the requirements of performance are satisfied

However, if there is no possibility of spreading any other matter, the dissemination of facts to a particular person is a public performance.

I would like to say.

(see, e.g., Supreme Court Decisions 2016Do21547, Jan. 30, 2020; 2010Do7497, Sept. 8, 2011). Whether there exists a possibility of radio waves ought to be determined objectively in a specific case by taking into account various circumstances, such as the details and circumstances of the statement made, the offender’s intent and the situation at the time of the statement, the offender’s attitude at the time of the statement, the victim’s attitude, the relationship between the perpetrator and the victim, the content of the statement, and the other party’s ordinary inclination.

In the case of recognizing the public performance of defamation on the ground of the possibility of spreading, dolusent intent is required as a subjective element of the constituent elements of the crime, and thus, it is not only aware of the possibility of spreading but also allows the risk.