aid of our society’s sound self-purification through harmony with the freedom of
expression.
2) Whether to recognize justifications stipulated in Article 310 of the Criminal Act
Article 310 of the Criminal Act prescribes that “if the facts alleged under Article 307
(1) are true and solely for the public interest, the act shall not be punishable,” the
purpose of which, as the provision on a special justification on criminal defamation, is
to ensure harmony between the protection of reputation and the freedom of individual
expression as above. If the requirements for justifications such as verification of the
truth and the public interest are strictly required, the scope of criminal sanctions will
widen and freedom of speech will shrink. If free criticism or discussion on vital public
issues or matters that the people need to know (right to know) is criminally punished,
the freedom of speech will be curtailed and the fair comparison of interests will place
more weight on the protection of reputation (see e.g., Constitutional Court en banc
Decision 97Hun-Ma265, Jun. 24, 1999).
Considering the foregoing effect, the Supreme Court has gradually recognized
Article 310 of the Criminal Act more broadly. The text and language of Article 310 of
the Criminal Act stipulates that illegality of an act is precluded merely where “true facts”
are expressed, but embraces even the case where a person who committed an act
has considerable reason to believe that such facts are not true even if such facts are
not true or proven as truthful (see e.g., Supreme Court Decisions 4294Hyungsang12,
May 17, 1962; 85Daka29, Oct. 11, 1988). The term “true facts” refers to those that the
important part of such facts is in agreement with objective facts when considering the
overall effect of the contents thereof and it is fine even if such facts contain contents
different from the truth in detail or somewhat exaggerated expressions. Moreover, the
text and language of Article 310 of the Criminal Act provides that the illegality of an act
will be excluded “solely for the public interest” but also includes those related to the
concerns and interests of a particular social group or the entire members thereof as
well as the interests of the nation, society, and the general public by mitigating the
requirements specified in the law. The application of Article 310 of the Criminal Act
cannot be excluded even if it incidentally contains another incentive or purpose for the
private interest if the main incentive or purpose of a person who committed such act is
for the public interest (see e.g., Supreme Court Decisions 97Do158, Oct. 9, 1998;
2002Do3570, Sept. 24, 2002).
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