2. Bodily injuries inflicted upon Nonindicted Party 5, etc., who were other victims,
and assaults on Nonindicted Party 6
On the ground same as indicated in its reasoning, the lower court upheld the
judgment of the first instance court which convicted the criminal defendant of each fact
charged in relation to this part. Examining the reasoning of the lower judgment in light
of the related legal doctrine and the evidence duly adopted by the lower court, the
lower court did not err and adversely affect the conclusion of the judgment by either
exceeding the bounds of the principle of free evaluation of evidence consistent with
logical and empirical rules or misapprehending the legal principle regarding an
expression that the victim does not want the offender to be punished as referred to in
an offence unpunishable over objection.
3. Conclusion
Therefore, the final appeal is dismissed and it is so decided as per Disposition by
the assent of all participating Justices except: a Dissenting Opinion by Justice Kim
Jae-hyung, Justice Ahn Chul-sang and Justice Kim Seon-soo and an Opinion
concurring with the Majority Opinion by Justice Park Sang-ok and Justice Min Yousook
4. Dissenting Opinion by Justice Kim Jae-hyung, Justice Ahn Chul-sang and Justice
Kim Seon-soo
The Majority Opinion intends to maintain the theory of propagation possibility with
regard to “publicity,” corresponding to constituent elements of criminal defamation.
However, publicity as referred to in criminal defamation is a concept that cannot
embrace propagation possibility. Publicity stipulated in Article 307(1) and (2) of the
Criminal Act refers to a state that many and unspecified persons can directly recognize,
and the requirements for publicity cannot be seen to be fulfilled even if there is
possibility to be propagated to many and unspecified persons therefrom by revealing
to a small number of specific individuals or minority. This cannot be accepted as the
Majority Opinion violated the principles of legality and interpretation of criminal law as
criminal punishment beyond the bounds intended by the Criminal Act by extensively
applying the constituent elements of a crime. The Supreme Court decisions which
admitted publicity on the grounds of the theory of propagation possibility ought to be
changed.
Specific reasons are as follows.
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