circumstances, the relevance to the public interest should not be limited to public
figures, systems, policies, etc.
Accordingly, details of the facts alleged can be seen to have public interest if they
are matters related to communal life with the other general public even if they are
matters related only to part of the general interest of society, and, by extension, in the
case where they are related to the public interest and gain social attention even if they
are matters regarding an individual, the application of Article 310 of the Criminal Act
should not be excluded on the sole grounds that they do not concern the general
interest of the state and society or particular social groups. Even in the case of a private
person, the relevance to the public interest ought to be determined in consideration of
the nature of social activities associated with said person and the influence that said
person has on society.
[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.
(A) Recognizing publicity on the grounds that there is a possibility to be propagated
corresponds to analogical interpretation which is prohibited by the principle of legality
as extensive interpretation unfavorable to the criminal defendant beyond the ordinary
acceptation of the text and language.
The legislative purpose which regulates publicity as a constituent element of criminal
defamation lies in punishing only when facts are revealed “socially” and “publicly”
beyond private conversations or conveyance of information among acts of
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