of online defamation by disclosing a false fact (Article 70, Section (2) of the Network Act)”5) is baneuisabulbeoljoe6). Accordingly, the issue is whether this stipulation in the Provision at Issue upsets the balance in the criminal punishment system, violating the principle of equality. Criminal prosecution is divided into two types based on who initiates the criminal lawsuit: state prosecution and private prosecution. Article 246 of our Criminal Procedure Act provides that “A prosecution shall be instituted and executed by a public prosecutor” and thereby declares the principle of state prosecution. This principle is reasonable in that it assures the appropriateness and balance of prosecutions. Chingojoe and baneuisabulbeoljoe are understood as exceptions to, or limitations on, the public prosecution principle. In prosecution for those types of crimes the will of victims or other persons is respected and the exercise of the authority of the state to impose criminal penalties is thereby restricted. The legislature decides which offenses should be included in the category of chingojoe or baneuisabulbeoljoe by considering the severity of damage resulting from the crime, the degree of social harm caused by the crime, the benefit of exercising prosecutorial authority, and the benefit of restricting that authority upon request of the victim. In other words, that decision is a matter within the broad discretion of the legislature. 5) Article 70 (Penalty Provisions) of the Network Act (2) A person who commits defamation of another person by disclosing a false fact to the public through an information and communications network to disparage the reputation of such person shall be punished by imprisonment with labor for up to seven years, by suspension of qualification for up to 10 years, or by a fine not exceeding 50 million won. 6) Baneuisabulbeoljoe is a type of offense that a prosecutor may charge without the victim’s or other person’s expressed preference for punishment of the offender but may not do so if the victim or other person makes a clear objection to such punishment. - 43 -