[1] The criteria for the defamation of a group as a result of collective labeling to be recognized as defamation against each group member

[2] The case holding that defamation by the expression "public prosecutors in the Daejeon District" may be deemed as referring to individual members within a group

[3] In a case where the victim of defamation is a public official, whether the burden of proof of the ground for the denial of illegality is converted (negative)

[4] Criteria for examination of setting limits between freedom of press and publication and protection of honor

[1] In principle, defamation by so-called collective labeling does not constitute defamation against each individual member since it is difficult to interpret that such a broadcast is against a specific person who belongs to the group, and the degree of criticism caused by collective labeling does not reach the degree of impact on the social evaluation of the members since the degree of criticism does not reach the degree of impact on the members’ social evaluation. However, in exceptional cases, if it is deemed that the number of members is less than the number of members or the surrounding circumstances at the time of broadcasting, etc., it shall be deemed that individual members within the group are specified as victims, and the specific criteria may include the size of the group, the nature of the group, and the status of victims within the group.

[2] The case holding that defamation by the expression "public prosecutors in the Daejeon District" may be deemed as referring to individual members within a group in light of the surrounding circumstances such as the intensive broadcast report, etc. over a month.

[3] Even in a case where a media, such as a broadcast, impairs an individual’s reputation by pointing out a fact, if it is solely for the public interest as a matter of public interest, if it is proved that the alleged fact is true, it shall not be deemed unlawful. In a case where there is considerable reason to believe that it is true even if there is no proof, it shall also be deemed that the victim of defamation is a public official, and the victim shall not be deemed to bear the burden of proving the truth or reasonable reason.

[4] In setting the limitation between the freedom of press and the protection of reputation, the standard of review shall vary depending on whether the victim whose reputation is damaged by the relevant expression is a public figure or a private figure, whether the expression concerns a public concern or belongs to a pure private sphere. In the case of expression as to a matter of public and social meaning, the restriction on the freedom of press should be mitigated, and in particular, whether the public official's morality, integrity, or duties are properly performed should always be subject to citizen's surveillance and criticism. Such monitoring and criticism function should not be easily restricted unless it is malicious or considerably unreasonable.

[1] Article 751 of the Civil Act, Article 21(4) of the Constitution / [2] Article 751 of the Civil Act, Article 21(4) of the Constitution / [3] Articles 750, 751 of the Civil Act, Articles 307 and 310 of the Criminal Act / [4] Article 751 of the Civil Act, Article 21(4) of the Constitution

[3] Supreme Court Decision 97Da24207 delivered on September 30, 1997 (Gong1997Ha, 3279) Supreme Court Decision 97Da19038 delivered on February 27, 1998 (Gong1998Sang, 865) Supreme Court Decision 2000Da68306 delivered on May 10, 2002 (Gong2002Ha, 1352) / [4] Supreme Court Decision 2002Da64384 Delivered on July 8, 2003 (Gong2003Ha, 1683), Supreme Court Decision 2002Da62494 delivered on July 22, 2003

Plaintiff 1 and three others (Attorney Kang Jong-sik, Counsel for the plaintiff-appellant)

Cultural Broadcasting Co., Ltd. and one other (Law Firm Young-soo, Attorneys Lee Jae-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na42662 delivered on October 10, 2002

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The facts duly established by the court below are as follows.

A. Status of the parties

(1) Plaintiffs 3 and 4 were serving as a public prosecutor belonging to the Daejeon District Public Prosecutor’s Office at the time of the broadcast indicated in paragraph (2) below. Plaintiffs 1 and 2 were serving as a public prosecutor belonging to the Daejeon Public Prosecutor’s Office until March 1998, and were serving as a public prosecutor belonging to the Daejeon Public Prosecutor’s Office at the time of the broadcast indicated in paragraph (2) below.

On the other hand, around June 17, 1999 near the time of broadcasting mentioned in paragraph (2), the current number of prosecutors nationwide was 1,151, and the current number of prosecutors of the Daejeon District Prosecutors' Office was 25 and the current number of prosecutors of the Daejeon High Prosecutors' Office was 6.

(2) Around January 7, 1999, the Defendant Cultural Broadcasting Co., Ltd. (hereinafter referred to as “Defendant Cultural Broadcasting”) first published the so-called “MBC news content” program to the scope of Nonparty 1’s attorney’s case acceptance book, which was broadcasted around 21:00 each day from February 7, 199, and then continuously and repeatedly reported in relation to the news report of the Daejeon Non-Party 1’s case of attorney fees for the first time via the same news program broadcasted around 21:00 each day from February 2, 199. Among them, it includes 18 broadcasts that the Plaintiffs alleged to have damaged their reputation (the contents are as shown in the Attachment 1 to 18 of the judgment of the court below), and Defendant 2, as the reporters belonging to the Daejeon Cultural Broadcasting Co., Ltd., Ltd., Ltd., the lower court (the news coverage of part of the broadcast) of the judgment of the lower court (attached 1, 4, 11.12.

B. Circumstances of the Defendants’ reports

Defendant 2 received from Nonparty 2, who was in charge of Nonparty 1’s attorney-at-law’s affairs, the explanation of Nonparty 2, and confirmed the actual work of employees, such as prosecutor’s office and court, etc. recorded in the case acceptance book. In addition, Defendant 2 confirmed the fact of the above case acceptance book through Nonparty 4, who was in charge of Nonparty 1’s attorney-at-law. Nonparty 5 interviewed news reporters who had reported, on the basis of Nonparty 2’s coverage and data, and the prosecutor’s investigation results, and reported the same broadcasts as indicated in the attached Table 1. through 18 of the lower judgment.

However, Defendant 2 or reporters of Defendant Culture Broadcasting did not gather news against Nonparty 1’s attorney-at-law and public prosecutors of Daejeon District for each of the above broadcasts.

(c) Details of retained case register;

The attorney-at-law's case records revealed in the prosecutor's investigation process consist of 632 copies submitted by the defendants and 754 copies (including one copy of a pen) that were seized at the office of non-party 2, the office of non-party 1 lawyer, and 122 copies (including one copy of a pen) that were seized at the office of non-party 2, which were the office of non-party 1 lawyer. Among them, 100 copies for documents containing "expenses" and "referr" and 653 copies for non-party 1's case records that contain no "expenses" but contain 653 items for non-party 1's case records and civil case list that did not contain 379 persons and 137 items, and among them, the number of persons and cases indicated in the "expenses" items were 122 persons and 16,630,000 won for total amount indicated in the "Expenses" item.

On the other hand, 379 persons indicated in the item of "referrator" and 122 persons indicated in the item of "expenses" are as follows (22 former prosecutor's staff, 4 former court staff, and 5 former police officers are included among the general public).

The chief prosecutor in the main sentence shall include 5, 23, 23, 71, 11, 215, 21, 46, 21, 21, 21, 46, 21, 40, 40, 5, 23, 71, 13, 13, 21, 21, and 40, 5, 71, 71, and 20

(d) Data and details of the results of the investigation conducted by the prosecution;

(1) On January 10, 1999, the prosecutor's office who investigated "non-party 1's attorney attorney attorney attorney attorney attorney attorney attorney fee-at-law case", analysis of the defendant's cultural broadcast submission book and additional data, contents that he will exercise full influence over the arrest of the office of the non-party 2, and as a result, the prosecutor summoned the attorney-at-law from the prosecutor's office to the non-party 1 attorney, the non-party 1 attorney attorney is not prepared by the prosecutor's office in lieu of the defendant's cultural broadcast submission book in his computer and has been destroyed for a long time. The book is less than his memory and less than his memory, and a considerable part of the book was omitted. The data reported in the attorney fee-at-law list was prepared and managed in the attorney fee-at-law list, and the "expenses" item in the attorney fee-at-law list was made several times a month to the non-party 2 secretary, and it was written that he did not directly contact or directly paid the defendant's expenses.

(2) On January 11, 1999, the prosecution’s sbrping data contains the following: (a) as a result of Nonparty 1’s investigation on Nonparty 1’s attorney-at-law, stating that the client was informed by telephone in the case of the board and prosecutor, or the client was subject to the introduction of the board and prosecutor; (b) some prosecutors known as the name was aware, but there was no money, and some judges made a statement as a person without a private conversation with himself/herself.

(3) On January 12, 1999, the prosecutor’s office’s data include the number of Nonparty 2’s officials and the details of Nonparty 1’s investigation, the search and seizure of Nonparty 1’s office, the search and seizure of Nonparty 1’s office, the restoration of the computer’s deleted file, the search and seizure of Nonparty 6’s head of the office, the search of Nonparty 6’s head of the office, the collection and analysis of income tax-reported data, the fact that Nonparty 1’s deposit account with Nonparty 1 is tracking, and the investigation of Nonparty 2’s office, and the fact that the violation of the Attorney-at-Law Act was thoroughly denied as if they were prepared in advance while self-denunciation.

(4) On January 13, 1999, Nonparty 1's attorney-at-law arranged 225 million won from 107 public prosecutor's staff members, etc. from January 1994 to July 197, 197, and delivered 129.5 million won for the introduction of the case. 44 times from 31 police officers handling the investigation case, confessions that 22.7 million won were given a bribe in connection with their duties, and requested a detention warrant on the day. Nonparty 2 also knew office's act of violence and occupational embezzlement, 225 times from 107 public prosecutor's staff members, etc., and 10,000 won for the introduction of the case, 10,000 won for the introduction of the case, and 31,000 won for the seizure and analysis of the case, 31,000 won for the seizure and analysis of the case, 32,727,000 won for the defendant's deposit account.

(5) On January 14, 1999, the prosecutor's office's sbrping data, along with the fact of arrest execution against the non-party 1 and the non-party 2, completely restored and analyzed the four deleted files of the computer on 1993 through 1997, the import statement of the case (No. 36) includes the details of the income tax return, the details of the case, the progress, and the amount of income, but does not include the "referr" and the "expenses, such as the pertinent books," and all of the recovered files are not significantly helpful to the business file, the preparation and investigation of the recall for the related persons, and the investigation plan of the date.

(6) On January 16, 1999, the aforementioned investigation situation, including summons and investigation by 39 persons related to the prosecution's staff, etc., as well as the investigation plan on the day, investigation plan on the following day, and investigation plan on the following day, etc.

(7) On February 1, 1999, the part of the investigation results of the Daejeon non-party 1 attorney-at-law's investigation results of the case was revealed to have been recommended or introduced by a judge, and most cases of introducing a case to an attorney-at-law at the request of relatives, relatives, and trends. The judge and the prosecutor confirmed that there was no fact that the case was introduced and introduced to the non-party 1 attorney-at-law," and the "type of introduction of the above item" includes one chief of the two chief prosecutor, one senior prosecutor, one senior prosecutor, and 10 won in case of introducing the case related to his duties, and 10 won in case of giving and receiving money and goods for the non-party 1 attorney-at-law's investigation results, and 10 won in case of giving and receiving money and goods for the non-party 1 attorney-at-law's work at the time of announcement after December 8, 199.

2. Judgment on ground of appeal No. 2

According to the reasoning of the judgment of the court below, since it is difficult to interpret so-called mass media media as being related to a specific person belonging to such group, and the degree of criticism by group display does not reach the degree of impact on the social evaluation of each member, the court below held that individual members of the Daejeon District Public Prosecutor's Office did not constitute defamation. However, if it is deemed that the number of members is low to the extent that they are regarded as broadcasting for each individual member or that they are referred to each individual member within the group due to the surrounding circumstances at the time of broadcasting, it should be deemed that individual members within the group are specified as victims, and that the specific criteria are that the size of the group, nature of the group, and the status of the plaintiff within the group were expressed by the public prosecutor at the time of the public prosecutor's office's request that the plaintiffs damaged their reputation, the court below held that the public prosecutor's office and the public prosecutor's office's office's office's office's service of the plaintiffs 1 to 18, as stated in attached Table 1 of the judgment.

In light of the records, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to defamation against individual members of a group with collective mark. The ground of appeal on this point is without merit.

3. Determination on the grounds of appeal Nos. 1 and 3

A. According to the reasoning of the judgment below, the court below rejected the Defendants’ assertion that each of the instant broadcasts was unlawful upon Nonparty 1’s request of Nonparty 1 for unlawful payment and unfair treatment of the case as stated in the separate sheet No. 3, on the premise that: (a) based on the overall flow of the instant broadcasts; (b) the method of forming screen pictures; (c) the method of linking the terms used words and phrases to viewers; and (d) the overall increase in the contents of the reports, the broadcast No. 1, recorded in the separate sheet No. 1, stated in the separate sheet No. 1, stated in the separate sheet No. 1, that the Daejeon District Prosecutors received money from Nonparty 1’s attorney in return for unlawful payment; and (b) the broadcast No. 2, recorded in the separate sheet No. 1, indicated in the separate sheet No. 1, the Defendants’ assertion that it was unlawful by Nonparty 1’s local public prosecutor or the Defense No. 1, indicated in the separate sheet No. 3, that the Defendants did not receive any money from Nonparty 1’s defense from the Daejeon District Public Prosecutor.

B. Even in a case where a media, such as a broadcast, injures an individual by pointing out a fact, if it is solely for the public interest and its purpose is proved to be true, such act shall not be deemed unlawful. The case where an actor does not prove it, even if there is no proof, and there is considerable reason to believe it as true, it shall also be deemed unlawful (see, e.g., Supreme Court Decisions 97Da19038, Feb. 27, 1998; 200Da68306, May 10, 2002; 200Da68306, May 10, 2002). The victim of defamation as a public official cannot be deemed to bear the burden of proving the above truth or considerable reason (see Supreme Court Decision 97Da24207, Sept. 30, 197). The court below is justified in holding that each of the broadcast of this case bears the burden of proving the truth or that there is a considerable reason to believe it as true.

C. However, the lower court’s rejection of the Defendants’ assertion of illegality regarding all of the instant broadcasts is not acceptable for the following reasons.

(1) In setting the limitation between the freedom of press and the protection of reputation, the standard of review shall vary depending on whether the victim whose reputation is damaged by the relevant expression is a public figure or a private figure, whether the expression concerns a public concern or belongs to a pure private sphere. In the case of expression on a matter of public and social meaning, the restriction on the freedom of press should be mitigated, and in particular, whether the public official's morality, integrity, or duties are properly performed, should always be subject to citizen's surveillance and criticism (see Supreme Court Decisions 2002Da64384, Jul. 8, 2003; 2002Da62494, Jul. 22, 2003).

(2) In light of the facts duly admitted by the lower court and the records, we examine whether each of the instant broadcasts constituted grounds for excluding illegality.

(A) Although the broadcast as indicated in the attached Form 1 No. 1 includes the following: (a) although the broadcast’s title is “one thousand won of rice base value”, the broadcast’s title is deemed as “one-time rice base value,” and it includes the content that public officials in lower-ranking and lower-ranking service can be viewed as the size of dry rice base value, and thus defer the size of the value of rice base delivered to high-ranking personnel in the prosecutor’s office. However, it is not only against public officials in lower-ranking service in the prosecutor’s office and prison, but also against public officials in lower-ranking service in the prosecutor’s office and prison’s office on February 1, 1999. Meanwhile, in the announcement of investigation results of the Prosecutor’s Office’s opening of the Supreme Prosecutors’ Office after August 1, 1992, the prosecutor 25, who was employed in the Daejeon area, from Nonparty 1’s attorney-at-law to the time of publication, etc., having received money from KRW 100,000 to KRW.000.

(B) The broadcast as shown in Attachment 2 includes the following: (a) Nonparty 1’s attorney-at-law could obtain the result of Nonparty 1’s client’s request for the share of the royalties; and (b) the prosecutor in the Daejeon District would make back transactions with Nonparty 1 attorney-at-law or provide pre-service honorary treatment and deal with the case unfairly as requested by Nonparty 1 attorney-at-law; and (b) the prosecutor in the Daejeon District unfairly handled the case at the request of Nonparty 1 attorney-at-law after the back transactions in the Daejeon District should be deemed as indicating the fact that the prosecutor in the Daejeon District received money from Nonparty 1 attorney-at-law and handled the case unfairly in return for the payment. In light of the records and the above legal principles, it cannot be deemed that the above facts are true or that there is a considerable reason to believe that the above broadcast is not unlawful, and therefore, the allegation in the

(C) It is reasonable to view that the broadcast listed in attached Table 3. The fact that the incumbent prosecutor was also aware of his duties through the explanation of the news poppy to Nonparty 1, and that the suspect was playing a practical hub such as receiving money in return for the introduction of the suspect who was aware of in the course of his duties. Although, among the introductions entered in the investigation report dated February 1, 1999 by the Supreme Prosecutors' Office, it includes five chief prosecutor and twenty-three public prosecutors among the introductions entered in the case register of Nonparty 1's attorney-at-law, it includes two public prosecutors who introduced the case related to his duties even though they did not receive any introduction fee, such circumstance alone does not lead to the truth that the prosecutor received money in return for the introduction of the case and received money, or there is a considerable reason to believe that it is true. Therefore, the allegation in the ground of appeal that the broadcast is not unlawful is also acceptable.

(D) The broadcast listed in attached Form 4. The public prosecutor who introduced the case to Nonparty 1 attorney-at-law stated that there was a case in which the case was investigated, and it is also a matter of doubt as to whether it could be conducted fair investigation. In light of the public prosecutor's notice of the investigation conducted on February 1, 1999, the prosecutor who introduced the case related to his duties can be found to have been a prosecutor who introduced the case to Nonparty 1 attorney-at-law. Thus, the facts indicated in the above broadcast should be deemed to be true, and it is reasonable to view that the above broadcast is not unlawful.

(E) The broadcast listed in attached Form 5. The content that Nonparty 1’s attorney mobilized school connection in the climate of pre-official honor and handled the case as desired by the client. The report on Nonparty 1’s attorney-at-law or the report on the Daejeon District Public Prosecutor’s case is included in the pre-official honorable treatment or the solicitation of Nonparty 1 attorney-at-law. However, in light of the importance of the media’s criticism on the fairness of the public official’s duties and the fairness of the public official’s duties, the broadcast also belongs to the extent that it can be permitted to suggest the degree of sacity or suspicion. Therefore, the illegality of this part is not recognized.

(f) The broadcast listed in the attached Form 6. The author stated that Nonparty 1 attorney-at-law withdrawns KRW 10 million each month from his own deposit account and remitted them to some of the incumbent prosecutors and judges in the Daejeon area, or laid entertainment from time to time under the name of rice base value to the prosecutor in the Daejeon area, and that Nonparty 1 attorney-at-law was in progress in the investigation on February 1, 1999, and that Nonparty 1 attorney-at-law was in progress. In light of the fact stated in the above broadcast and the fact that Nonparty 1’s attorney-at-law delivered money and valuables to some of the prosecutors working in the Daejeon area from the time of the above investigation results to August 1, 199 to the time of the above investigation results, it is reasonable to view that there is no illegality of the above broadcast function as seen earlier, even if there is the fact stated in the above broadcast, and there is no illegality of the broadcast function as seen earlier.

(G) The broadcast listed in Attachment 7. The summary that the prosecution is binding only on a public official in the middle and lower rank and that the prosecutor only takes disciplinary action without judicial processing, at the end of the investigation into Daejeon Law, is that it provides citizens with a net and decentralization, and that it cannot be recognized as illegality in such an appraised report.

D. Thus, among each of the broadcasts of this case, only the broadcasts listed in [Attachment 2.3] and [Attachment 2.3] are deemed to be unlawful and constitute tort against the plaintiffs and the remaining broadcasts are not unlawful. However, the court below held that all of the broadcasts of this case constitutes tort against the plaintiffs, and on the premise of such determination, determined the amount of consolation money which the defendants are liable to compensate for to the plaintiffs. Thus, the judgment below cannot be maintained as it is. The ground of appeal on this point is with merit within the above scope

4. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of 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 Park Jae- Jae (Presiding Justice)