(C) The meaning of publicity as referred to in various crimes, whose constituent
element is publicity, in the Criminal Act, etc. ought to be equally interpreted. This also
accords with the legislative purpose of each regulation and systematic construction of
criminal law. Unlike public indecency (Article 245) or distribution, etc. of obscene
pictures (Article 243), including propagation possibility in the concept of publicity in
criminal defamation undermines uniform interpretation of the Criminal Act, and thus
criticism that it lacks coherence as to publicity cannot be avoided.
(D) Determining publicity based on whether the other party of the alleged facts has
possibility of disseminating the facts is to make a person who committed such act
assume legal responsibility for the result thereof by infringing the possibility of foresight
of a person who ought to follow the order of law, which contradicts the evaluation
method of criminal law. Eventually, determining the constitution of criminal defamation
depending on whether the other party who listened to defamatory facts may distribute
the facts alleged by the person who committed such act to another person in the future
can be deemed to hold the person who committed such act responsible for the result
thereof by citing accidental circumstances that should not be considered when
determining whether an act is illegal.
(E) Determining publicity based on propagation possibility leads to excessive
expansion of the culpability scope of criminal defamation and is contrary to the
principle of subsidiarity of the Criminal Act.
Taking into account propagation possibility when determining publicity is to confuse
both the benefit and protection of the law in criminal defamation, which is abstract
endangerment offenses established on the sole basis of the risk of being infringed
even if the reputation is not externally infringed in reality, and the modality of an act by
substituting propagation possibility for publicity required as the modality of an act of
criminal defamation. Viewing the criminal defamation as abstract endangerment
offenses is to punish where a person’s reputation is in danger of being infringed by the
facts publicly alleged, not even where the alleged facts are at risk for becoming public.
This is because the legal basis of punishment of criminal defamation lies with the
danger that facts can be constantly disseminated, i.e., not the danger of defamation
resulting from propagation by another person but the danger of defamation caused by
publicly alleging facts.
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