2) The Dissenting Opinion argues that the Majority Opinion resolves the problem,
which ought to be solved by complicity theory, instead through the theory of
propagation possibility.
However, criminal defamation is consummated when reaching the stage where the
general risk of defaming another’s reputation can arise. Thus, if a person alleged facts
individually to a small number of persons who have possibility to propagate such facts
to many or unspecified persons, as such act is consummated at that stage and such
crime is completed, there is no room for the constitution of an accomplice, and thus
this cannot be deemed as a matter of accomplice. Moreover, if it is a case where the
first propagator’s intention of instigating another (intention of causing a principal to
have a resolution on a crime and committing such crime through the principal) cannot
be admitted, even though the first propagator has committed the greatest illegality, the
act becomes unpunishable.
3) The Dissenting Opinion argues as if the theory of propagation possibility thwarts
the current Me Too movement, but this is an issue irrelevant to the interpretation of
publicity. This is because the regulations regarding the Me Too movement are merely
a matter of whether an act in which a victim of a crime lets many persons including the
press, etc. know the fact that he/she was damaged is punishable and the Me Too
movement cannot be seen to be punished due to the theory of propagation possibility.
This is a matter caused by the penalty for criminal defamation based on the facts
alleged in the Criminal Act, etc. On the basis of such critical mind, the precedents of
the Supreme Court, as seen in the Majority Opinion, have denied the intention and
publicity of defamation in a case concerning remarks related to public proceedings
such as the response to, and investigation of, a harmful act and the Majority Opinion,
further, views that justifications ought to be recognized by broadly applying Article 310
of the Criminal Act if the facts are solely for the public interest and attract social
attention or have an effect on society even if they are matters concerning an individual.
According to the Majority Opinion, it cannot be rather a solution to protect a victim of a
crime as justifications prescribed in Article 310 of the Criminal Act are recognized even
in the case of revealing such facts to the majority of the public as well as the case
where a victim of a crime, as with the Me Too movement, reveals the facts of the crime
to a few close friends.
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