(H) The Majority Opinion intend to broadly view justifications stipulated in Article 310
of the Criminal Act for the purpose of achieving harmony with the freedom of
expression after viewing that even an act of expression performed in a private
relationship and space to protect an individual’s reputation corresponds to constituent
elements. However, this also culminates in leaning toward the protection of an
individual’s reputation and reveals nothing beyond evasion to maintain the theory of
propagation possibility. No matter how broadly justifications stipulated in Article 310 of
the Criminal Act are viewed, the remark ought to be punished as criminal defamation
unless there is publicity in its main purpose and contents. Not only is there a question
about how many cases where a private conversation in a private space has publicity
exist, but requiring publicity is the same as prohibiting private conversations regarding
personal subjects. The entire nation cannot avoid criminal punishment except wishing
for good luck that the contents of private conversations are not revealed to the victim.
This leads to viewing the entire nation as either potential criminals or those who have
not yet been detected.
[2] [Majority Opinion] In the case where the criminal defendant was charged with
defaming Party A by publicly alleging facts by exclaiming aloud, “that person is an exconvict who has served out his/her sentence,” to Party A, while Party B, the husband
of the criminal defendant, and Party C, a relative of Party A, were listening on a back
street of Party A’s house, comprehensively considering that: (1) the criminal defendant
and Party A, as neighbors, are in a conflicting relationship due to various issues and
the criminal defendant made the aforementioned remark in the process of arguing with
Party A on that day; (2) as Party B and Party D, the wife of Party A, overheard the
criminal defendant and Party A arguing in a loud voice, they exited their respective
houses, and Party A and Party D consistently stated to the effect that “the criminal
defendant loudly spoke that Party A was an ex-convict and villagers as well as Party
C heard it”; (3) the criminal defendant declared aloud that “Party A was a vicious exconvict” even in front of a police officer who was dispatched after receiving a report
several times; even though the place in which Party A lives was a clan village with the
same surname as Party A and Party C, and Party A has a previous conviction, Party
C is not seen as being in a close relationship with Party A by inference of the statement
that Party C “heard the fact that Party A was an ex-convict for the first time from the
criminal defendant,” the case holding that considering the degree of acquaintance
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