Open Decision Ledger · Criminal law
Possible onward spreading as publication in defamation
Supreme Court, Jan. 30, 2020, 2016Do21547 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 명예훼손
Official text on the National Law Information Center
Question
In a defamation offence, does telling a fact to one identified person satisfy the requirement of publication where it may spread to an unspecified or large number of persons, and what awareness must the speaker have of that possibility?
Holding
Publication means a state in which an unspecified or large number of persons may perceive the statement; simultaneous perception is not required, so even a statement made to one person individually satisfies the requirement if it may spread onward, while it does not where no such possibility exists. Whether there is such a possibility is judged objectively on the concrete facts, weighing the circumstances of the statement, the speaker's conduct and attitude, the listener's attitude, the relationships among the speaker, the victim and the listener, the content and the listener's usual character. Where publication is found on the ground of possible spreading, the speaker must also have the oblique intention as to that possibility, meaning both awareness of it and an inner will to accept the risk.
Points at issue, verbatim
명예훼손죄의 구성요건 중 ‘공연성’의 의미 및 판단 기준
Unofficial English translation
The meaning and criteria for determining 'publicity,' one of the constituent elements of the offense of defamation
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 춘천지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Chuncheon District Court.
Form of the test
Circumstances weighed Stated in the decision
여러 가지 사정을 종합하여 구체적인 사안에서 객관적으로 판단하여야 한다
Unofficial English translation
must be determined objectively in the specific case by taking into comprehensive consideration various circumstances
Factors
- 명예훼손죄의 구성요건 중 ‘공연성’의 의미 및 판단 기준
- 전파가능성을 이유로 명예훼손죄의 공연성을 인정하는 경우, 주관적 요소로서 고의의 내용 및 고의 유무의 판단 방법
Unofficial English translation
• The meaning and criteria for determining 'publicity,' one of the constituent elements of the offense of defamation
• Where the publicity of the offense of defamation is recognized on the ground of the possibility of dissemination, the content of intent as a subjective element and the method of determining whether such intent exists
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2000. 5. 16. 선고 99도5622 판결
Unofficial English translation
Supreme Court Decision 99Do5622 decided May 16, 2000
Decisions referred to
대법원 2000. 5. 16. 선고 99도5622 판결(공2000하, 1468), 대법원 2004. 4. 9. 선고 2004도340 판결(공2004상, 850), 대법원 2011. 9. 8. 선고 2010도7497 판결(공2011하, 2167), 대법원 2018. 6. 15. 선고 2018도4200 판결(공2018하, 1347)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a listener passes the statement on after the speaker has said it in a private one-to-one talk, does that later act alone establish the speaker's acceptance of the risk of spreading?
A judgment of the Chuncheon District Court on remand that applies these two limbs to the same facts would show how they work in practice. Any later Supreme Court decision revising the meaning of publication, or Article 307 of the Criminal Act being amended, would call for this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Chuncheon District Court, in its judgment of 15 December 2016 (2015No988), found that the defendant stated false facts to Person 1 and Person 2, that neither of them had any personal connection with the defendant or the victims and neither held a post carrying a duty of secrecy, and so held that the statement was capable of spreading. It convicted the defendant on that basis.
Supreme Court standard: The Supreme Court held that the court below had misapprehended the law on publication in defamation and that the error affected the judgment. On the record, the defendant spoke to each of the two alone, the content concerned the private matter of the victims' relationship with the deceased, and the two listeners appeared to have no reason to pass the statement on. Person 2 filed an answer setting out the statement in a civil action brought by Person 7, so Person 7 learned of it, but he too appeared to have no reason to tell others, because he was asserting that the deceased lived with him in a de facto marital relationship and disputing the victims' claim to the debt, so neither a possibility of spreading nor the intention to accept that risk could readily be found.
Distinguishing conditions
- A statement made to several persons at once or in a setting where the listeners have a relationship or reason to pass it on, so that the record findings on one-to-one private talks do not apply.
- A speaker shown to have been aware of the possibility of spreading and to have accepted its risk, where the external form of the conduct and the circumstances support that finding.
- A case in which the facts show no possibility of spreading at all, so that the Court's reasoning on the subjective element is not reached.
Record verification notes
Before relying on this decision, gather the circumstances the Court listed: how the statement came to be made, the situation at the time, the speaker's conduct and attitude, the listener's attitude, the relationships among the speaker, the victim and the listener, the content, and the listener's usual character. Then look separately for what would show that the speaker knew of the risk and accepted it, since objective spreading possibility alone does not make out the offence. Note also that the Court reasoned about each listener's reason to pass the statement on, including the person who learned of it from a civil pleading.
From the official text
Points at issue
명예훼손죄의 구성요건 중 ‘공연성’의 의미 및 판단 기준 / 전파가능성을 이유로 명예훼손죄의 공연성을 인정하는 경우, 주관적 요소로서 고의의 내용 및 고의 유무의 판단 방법
Unofficial English translation
The meaning and criteria for determining 'publicity,' one of the constituent elements of the offense of defamation / Where the publicity of the offense of defamation is recognized on the ground of the possibility of dissemination, the content of intent as a subjective element and the method of determining whether such intent exists
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 춘천지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Chuncheon District Court.
Provisions referred to
형법 제307조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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