(영문) 대법원 2020.6.11. 선고 2019도16767 판결

The judgment of the court below (including the part not guilty in the grounds) shall be reversed, and the case shall be remanded to the Seoul Eastern District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. The summary of the facts charged of this case is as follows: (a) the Defendant committed an indecent act on the Internet newspaper's website for the purpose of slandering the victim; (b) the victim committed an indecent act on or around April 2004 by committing sexual intercourse with the female employees; (c) the F Korean Embassy (hereinafter referred to as the "F Embassy") serving as the construction of the F Korean Embassy (hereinafter referred to as the "F Embassy"); (d) caused female employees and cans; (e) interfered with the body of female employees; and (e) caused sexual indecent act, etc.; and (e) caused numerous women to feel sexually, thereby impairing the victim's reputation by spreading false facts using information and communications networks.

2. On this issue, the first instance court and the lower court found the victim guilty on the part of the notice of this case that "the victim had scarcityd many women while working for the Embassy as a construction of the F Embassy," on the grounds as stated in its reasoning. The part of the notice of this case that "the victim committed sexual intercourse with the female female on April 2004, while serving as the construction of the F Embassy, caused female employees and the female female employees' body while holding office as the construction of the F Embassy, interfered with the female employees' body, and led to sexual indecent conduct." was found not guilty on the ground of its reasoning.

3. However, it is difficult to accept the judgment of conviction above for the following reasons.

A. “Purpose of slandering a person” under Article 70(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) may be recognized as having the intent and purpose of assault. Inasmuch as the objective of slandering is contrary to the subjective intent of an actor, which is for the public interest, barring any special circumstance, the purpose of slandering a person is denied, barring any special circumstance. Whether the publicly alleged fact pertains to the public interest of the public is merely a victim of defamation, such as a public official, or a private person, or a private person. Whether the publicly alleged fact pertains to the public interest issue with the public interest of which the public should objectively know, whether the expression falls under pure private sector or not, whether the victim is the person of the risk of defamation, whether the victim was the person of the risk of defamation, the nature and degree of infringement of reputation damaged by the expression, and the motive for expression, etc. (see, e.g., Supreme Court Decision 201Do1681, Nov. 26, 2018).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The victim was a diplomat who had worked as a staff member of the F Embassy from August 2008 to August 201, 201, and had been subject to disciplinary action for salary reduction three months after reporting to the press in 2004. The Defendant did not have worked as an administrative staff member of the F Embassy from August 2012 to October 201 with the victim.

2) At around 2016, the Defendant heard from the F Embassy Administrative Staff J of the F Embassy in 2009 that he was forced by indecent act by force from the victim during the Embassy service, and around that time, from K who worked as an administrative staff of the F Embassy at the F Embassy at the F Embassy, the Defendant committed an indecent act against the victim in the door of singing in the singing room, and the victim was also in the face of the victim at the time of the singing room. In addition, the Defendant stated that “the victim engaged in an act suspected of committing an indecent act by force, such as having a loss with X of the F Embassy staff X.”

3) On December 2016, when the media reported the media’s indecent act by compulsion by a minor of a diplomat working at the AC Embassy, the Defendant puts a tobacco writing on the Internet newspaper “C” website from December 20, 2016 to February 3, 2017. The overall purpose of the said tobacco writing is to criticize the operation of an overseas embassy that does not undergo checks and surveillance, the abuse of the authority of senior diplomats working at the AC Embassy, the abuse of the authority of senior diplomats working at the overseas embassy, and the organized efficition of the Ministry of Foreign Affairs, etc.

4) The second letter posted as of December 23, 2016 among the above written comments is that "the diplomatic division did not strong punishment against the misconduct of diplomats and did not pay attention to the situation that people's interest flows out of time." The contents of the victim among the above cases are "one of the victim's sexual misconduct committed in 2004, who was subject to minor disciplinary action by the Ministry of Foreign Affairs, taken office as the construction of the F Embassy after being subject to the minor disciplinary action by the Ministry of Foreign Affairs, while he committed sexual misconduct committed by the victim in 204." The purpose of this article is that "the victim was unaware of the position of Ambassador while repeating the same sexual misconduct by using the power of the Corporation and repeating the same kind of sexual misconduct."

5) The Defendant consistently stated from an investigative agency to the lower court’s court that the instant notice was written and made in order to criticize the irregularities in the operation of the overseas embassy and the fall into the power of senior diplomats.

C. Considering the following circumstances recognized by the foregoing facts, the facts indicated in the instant bulletin are related to the public interest, and it is difficult to deem that there was a purpose to slander the victim.

(1) The aggrieved person shall be a senior public official belonging to the Ministry of Foreign Affairs, and sexual misconducts committed by public officials belonging to the Ministry of Foreign Affairs may be subject to verification and criticism by the general public.

② The Defendant’s sexual misconduct, etc. by diplomats belonging to other foreign embassies was reported to the media and had public interest. The Defendant appears to have written the instant notice to the effect that, based on the facts verified while working at the past F Embassy, the Defendant expressed public comments and urged improvement, such as irregularities, abuse of authority by high-ranking diplomats, etc. in the operation of the overseas embassy.

(3) No defendant shall find any motive to slander a victim due to an individual appraisal or economic interest, etc. with the victim.

④ Of the expression of the instant article, the part that “the victim convicted of the lower court in the lower court’s position as the F Embassy works,” which states that a number of women sexual misconducts in the process of summarying the expression of the victim’s sexual misconducts that were judged not guilty in the reasoning in the lower court, can be deemed to have used a somewhat exaggerated expression, and it does not have a significant portion in the entire content.

D. Nevertheless, the lower court erred and adversely affected the conclusion of the judgment by misapprehending the legal doctrine on “purpose of non-disclosure” under Article 70(2) of the Information and Communications Network Act, solely on the grounds stated in its reasoning.

4. For the foregoing reasons, the part of the judgment of the court below on conviction should be reversed. Since the part on acquittal with the above reversed part should be reversed, the judgment of the court below should be reversed in its entirety.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below (including the part on acquittal in the grounds of appeal) and remand the case 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.