[1] The meaning of a public performance, which is a constituent element of the crime of defamation, and whether the public performance of defamation may be disseminated to an unspecified or many unspecified persons even if the fact was revealed to one person (affirmative)

[2] In a case where Defendant (the director of Gap University’s office) was indicted on charges of impairing the honor of victims by openly pointing out false facts, the case holding that the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine on the following grounds: (a) the Defendant did not have the intent to recognize and allow the possibility of spreading the above remarks, in a case where he did not have any awareness of and to allow the Defendant’s awareness of the possibility of spreading the remarks, on the ground that he did not intend to recognize and to allow the Defendant’s awareness of the possibility of spreading the remarks

[1] Article 307 of the Criminal Code / [2] Article 307 of the Criminal Code

[1] Supreme Court Decision 2007Do8155 Decided February 14, 2008 (Gong2008Sang, 413), Supreme Court Decision 2010Do2877 Decided October 28, 2010, Supreme Court Decision 2013Do6465 Decided July 25, 2013

Defendant

Prosecutor

Gwangju District Court Decision 2016No127 Decided September 21, 2016

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

The grounds of appeal are examined.

1. Public performance, which is the constituent element of the crime of defamation, refers to a state in which many, unspecified or unspecified persons can be recognized. Thus, even if an individual spreads facts to one person, if there is a possibility of spreading such facts to many, unspecified or unspecified persons, the requirement of public performance is satisfied (see, e.g., Supreme Court Decision 2007Do8155, Feb. 14, 2008). Furthermore, in a case where public performance of defamation is acknowledged on the ground of the possibility of spreading as above, there is dolusent intent as a subjective element of the constituent element of the crime. As such, public performance can be recognized not only when there is awareness of the possibility of dissemination, but also when there is an intent to deliberate on the risks thereof. Furthermore, whether an actor permits the possibility of dissemination should be confirmed from the perspective of an offender, taking into account how to assess the possibility of dissemination if the general public is based on specific circumstances, such as the form of the act expressed outside and the situation of the act (see, e.g., Supreme Court Decision 2013Do6465).

2. Based on its stated reasoning, the lower court affirmed the first instance judgment that acquitted Nonindicted 1 of the facts charged of this case, on the ground that it was acknowledged that the Defendant had made a statement to the same purport as the entries in the facts charged of this case, but it cannot be deemed that the Defendant had committed the above act with the intent to recognize the possibility of radio waves at the time and to allow the risk.

3. However, examining the reasoning of the lower judgment and the following circumstances revealed by the evidence duly admitted in light of the aforementioned legal principles, the lower court’s aforementioned determination is difficult to accept.

① The Defendant, the head of ○○ University’s clerical work, ○○ University, was drinking Nonindicted 1, a reporter of △△△△△△△△△ on the day of the instant case, and talked on a complicated position in a school due to the president’s indecent act against female professors. At the time, Nonindicted 2, professors, etc. complained against the president of ○ University on charges of sexual indecent act.

② In such circumstances, the Defendant told Nonindicted 1, a reporter, to the effect that “The victims who are professors of ○ University, are male and female relations, and opened an order to see good conduct, and furthermore, it would be known if confirmed.” In light of such circumstances, it is reasonable to deem that the Defendant had either intended or allowed Nonindicted 1 to prepare an article, at the time, intended to do so.

③ In fact, Nonindicted 1 prepared and inserted an article containing a statement to the same effect as the Defendant stated in the instant facts charged, following the confirmation of the fact against the victim, etc.

④ The Defendant, on the premise of Non-Indicted 1’s non-indicted 1’s report at the time, made a statement to the same purport as indicated in the instant facts charged, and the Defendant’s statement was unforeseeable and reported as an article. However, at the time of the first instance trial, Non-Indicted 1 made a statement that, at the time of the first instance trial, the Defendant “non-indicted 1’s statement to the effect that “non-indicted 1 would not make a report.” Even if the Defendant made a statement to the effect that he would not make a report to Non-Indicted 1 at the time, it cannot be said that there is no possibility that Non-Indicted 1, who is the reporter, could spread his statement

Ultimately, the lower court determined that the Defendant cannot be deemed to have proved that there was an awareness and intent to allow the Defendant to spread the same speech as indicated in the facts charged of the instant case. In so doing, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the public performance in the crime of defamation, thereby affecting the conclusion of the judgment.

4. Therefore, 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 Kim Yong-deok (Presiding Justice)