[1] The statement and degree of the fact for the establishment of defamation

[2] Whether there is a possibility that a complainant's social value or evaluation may be infringed if the accusation is known around the crime (affirmative with qualification)

[3] The case holding that it is difficult to view that a specific fact sufficient to infringe on the social value or evaluation of Eul was publicly known, even though Eul filed a complaint against Eul with a third party as a violation of the Election Act and did not mention the motive or circumstance of the complaint

[1] In order to establish the crime of defamation, a statement of fact must be made, and the alleged fact should thereby be made to the extent that the social value or evaluation of a specific person is likely to be infringed. Even if a false statement was made, if the false fact is not a matter that may infringe on the social value or evaluation of a specific person, the crime of defamation under Article 307 of the Criminal Act is not established.

[2] Any person who suspects an offense may file a complaint when he/she considers it to be an offense, so the fact that a person filed a complaint was aware of the offense, and the fact that the accusation itself alone does not constitute an infringement on the social value or assessment of the complainant. However, if the circumstances are known, such as the motive or circumstance of the accusation is inconsistent or unreasonable, there may be a possibility that the complainant’s reputation may be infringed.

[3] The case holding that it is difficult to view that specific facts sufficient to infringe on the social value or evaluation of Eul have been publicly known, in case where Gap filed a complaint against Eul to a third party for violation of the Election Act only when Eul filed a complaint against Eul's violation of the Election Act and did not mention the motive or circumstance of the complaint

[1] Article 307 (1) of the Criminal Code / [2] Article 307 (1) of the Criminal Code / [3] Article 307 (1) of the Criminal Code

[1] [2/3] Supreme Court Decision 93Do696 delivered on June 28, 1994 (Gong1994Ha, 2145) / [1] Supreme Court Decision 2004Do4573 Delivered on June 15, 2007, Supreme Court Decision 2006Do7915 Delivered on November 13, 2008

Defendant

Defendant

Incheon District Court Decision 2009No1249 Decided June 26, 2009

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

First, we judge ex officio.

The crime of defamation requires a statement of fact in order to establish the crime of defamation, and the statement of fact must be made to the extent that the social value or evaluation of a specific person is likely to be infringed. Even if a false statement of fact was made, if the false statement of fact does not infringe on the social value or evaluation of a specific person, the crime of defamation under Article 307 of the Criminal Act is not established (see Supreme Court Decision 2004Do4573, Jun. 15, 2007).

On the other hand, any person may file a complaint when he/she considers an offense, so the fact that a person filed a complaint was aware of the fact that he/she filed a crime, cannot be deemed as infringing upon the social value or assessment of the complainant by itself. However, in cases where the circumstances, such as the motive or circumstance of the accusation is inconsistent or unreasonable, are known, the honor of the complainant may be infringed (see Supreme Court Decision 93Do696, Jun. 28, 1994).

In full view of the evidence admitted by the first instance court, the lower court rejected the Defendant’s grounds for appeal and upheld the first instance judgment convicting the Defendant of the charges of this case on the ground that it is reasonable to deem that the Defendant had lowered the victim’s social assessment by pointing out the aforementioned false facts as stated in the judgment of the first instance court, and comprehensively taking account of the circumstances in the judgment, the lower court affirmed the first instance judgment that found the Defendant guilty of the facts charged of this case.

However, even though it is not clear whether Nonindicted 4 violated the Election Act on the record, any person may file a charge when he think that the crime was committed. As the judgment of the court of first instance, the Defendant merely stated that the victim accused Nonindicted 4 of the violation of the Election Act, and if the victim did not mention the motive or circumstance of the accusation, such remarks alone cannot be deemed as a statement of specific facts sufficient to infringe on the social value or evaluation of the victim. Therefore, the lower court should have deliberated further on whether the Defendant mentioned the motive or circumstance of the accusation of the victim, and recognized and convicted him of the facts charged in this case. In so doing, the lower court erred by misapprehending the legal doctrine on the statement of facts concerning defamation, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)