In the crime of defamation, the meaning of “a statement of fact” or the standard for determining whether a statement is a fact or an opinion / Where an expression used in criticism or writing of another person’s words or writing takes the form of describing specific facts that can be proved by evidence, but does not constitute a statement of fact in the crime of defamation.

The expression of facts in the crime of defamation refers to a report or statement of facts in a specific past or present, time and space, and the content thereof can be proven by evidence, as a concept substitute for an expression of opinion with respect to a value judgment or evaluation. The determination should take into account the ordinary meaning and usage of language, possibility of proof, context in which the expression in question was used, social situation in which the expression was used, etc. in order to distinguish whether the statement of determination is a fact or an opinion.

Even if the expression used in criticisming another person’s speech or writing takes the form of describing specific facts that can be proved by evidence to be seen as the outer page, considering the overall contents, etc. of the writing’s intent, logical flow, descriptive structure and method, the expression or writing in question in the context of an average reader’s perspective falls under a de facto subjective opinion. However, if the expression is understood as using such expression as a means to emphasize one’s own opinion, it cannot be deemed as a statement of fact in the crime of defamation.

Articles 307 and 309 of the Criminal Act

Supreme Court Decision 97Do2956 Decided March 24, 1998 (Gong1998Sang, 1248) Supreme Court Decision 2010Do17237 Decided September 2, 201 (Gong2011Ha, 2152)

Defendant

Prosecutor

Law Firm Barun et al.

Seoul Western District Court Decision 2016No287 decided November 3, 2016

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the distinction between a statement of fact and an expression of opinion

A. In the crime of defamation, a statement of fact is a concept substituted by an expression of opinion with a value judgment or evaluation, and the content of the statement refers to a report or statement of specific past or current facts which can be proved by evidence, and in distinguishing whether a statement of determination is a fact or an opinion, it shall be determined by considering the ordinary meaning and usage of language, possibility of proof, context in which the expression at issue was used, social situation in which the expression was made, etc. (see Supreme Court Decision 97Do2956, Mar. 24, 1998, etc.).

Even if the expression used in describing another person’s speech or writing takes the form of describing specific facts that can be proved by evidence to be seen as the outer page, when comprehensively considering the writing’s intent, logical flow, descriptive structure and method, the language or writing’s overall contents, etc., in light of the average reader’s perspective, the part at issue actually falls under the category of “non-party’s subjective opinion”. However, if the expression is understood as using such expression as a means to emphasize one’s own opinion, it cannot be deemed as a statement of fact as referred to in the crime of defamation.

B. The summary of the facts charged of this case is as follows: (a) the victim denied the name of Y○○○○○○○○○○○○ (hereinafter “victim’s book”); (b) Japan occupied or took control over another region of the Korean Peninsula including the camping at the specific time of senior Ambassador; and (c) Japan used the Japanese flag’s historical records that Japan used and took control over the remaining region of the Korean Peninsula; and (b) the victim’s book, △△△△△△△△△△△ (hereinafter “the book of this case”) dealing with the contents of the victim’s book; (c) the victim made and published a book containing the victim’s book (hereinafter “△△△△△△△△△△△△△△”), and (d) the victim argued that “the white book was damaged or popular, and that it was against the victim’s reputation by publicly alleging the fact that it was a publication of the victim’s reputation by pointing out the fact that it was false or false.”

C. The following circumstances revealed by the aforementioned legal principles and records, namely, ①, ②; ③ the outer part takes the form of describing specific facts that can be proved by evidence, and only the part is not likely to be misunderstood as a statement of fact, but the book of this case is developed with the content that criticizes the research results of the existing liquor academic circles from the above point of view as stated by the defendant at the end of his head, and the book of this case was written for the purpose of criticism of the public opinion and developed with the view of criticism of the existing liquor academic circles from the above point of view, ② the part cited the specific part of the victim’s book, ② the part is explaining the logical structure of the part, or the contents of the victim’s book, and it presents its interpretation after citing the specific part of the victim’s book, and considering the whole contents of the book of this case and the victim’s book of this case’s opinion, it is reasonable to see that the above part constitutes a part of the defendant’s opinion that should be understood as an expression or adjustment of the contents of the opinion of this case as the victim’s opinion.

Although there is room for criticism regarding the reasonableness of the contents of the Defendant’s assertion or opinion as above, it is desirable to deal with such criticism in the field of academic controversy and free competition of ideas as much as possible, and it is not always an object of criminal punishment by readily concluding that it constitutes a statement of fact in the context of interpreting the elements of defamation.

D. The court below reversed the judgment of the court of first instance on the grounds that the overall purport of the contents described in the book of this case as to ①, ③ is not identical to that stated in the facts charged, or that the contents described in the book of this case are not false facts, or that even if interpreting the aforementioned parts ①, ③ as stated in the facts charged, it is revealed the Defendant’s opinion or evaluation as to the liability of the victim, which constitutes an expression of opinion whose contents are the Defendant’s value judgment and evaluation as to the logic of the back that is concealed in the victim’s book, and acquitted the Defendant.

Although the reasoning of the court below is somewhat insufficient, it is just to conclude that the defendant did not constitute defamation by publication. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the distinction between a statement of fact and an expression of opinion, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion

2. As to the remaining grounds of appeal (public allegation of false facts and purpose of slandering)

This part of the ground of appeal is merely a substantial dispute over the fact-finding and the selection of evidence by the court below, and it does not constitute a legitimate ground of appeal. In light of the records, the court below did not err by misapprehending the legal principles as to the purpose of expressing or slandering false facts or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, as otherwise

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)