Open Decision Ledger · Criminal law
Burden of proving falsity and knowledge in publication defamation
Supreme Court, Feb. 13, 2020, 2017Do16939 (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: 출판물에의한명예훼손·폭력행위등처벌에관한법률위반(공동주거침입)·업무방해
Official text on the National Law Information Center
Question
In a prosecution for defamation by publication, who must prove that the stated fact is false and that the defendant knew it to be false, and by what standard is it decided whether that burden has been discharged?
Holding
The prosecution bears the burden on every element of the offence, whether objective or subjective: that a fact lowering the victim's social evaluation was stated, that it is objectively untrue, and that the defendant knew it untrue when stating it. Deciding whether that burden is discharged requires proof beyond reasonable doubt not only of the existence of a fact but also of the non-existence of an act, where that non-existence concerns a specific act at a specific time and place. On the record here the Court held that falsity and the defendant's awareness of it had not been proved to that standard, and reversed the judgment as to Defendant 1.
Points at issue, verbatim
허위사실 적시 명예훼손죄에서 ‘적시된 사실의 허위성’, ‘허위의 인식’ 등에 관한 증명책임의 소재(=검사) 및 증명책임을 다하였는지 판단하는 기준
Unofficial English translation
In the crime of defamation by publication of false facts, where the burden of proof (= the prosecutor) lies as to "the falsity of the facts published," "knowledge of falsity," etc., and the standard for determining whether the burden of proof has been discharged
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고인 1에 대한 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다. 피고인 2, 피고인 3, 피고인 4의 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns Defendant 1, and this part of the case is remanded to the Suwon District Court as to this part. The final appeals of Defendant 2, Defendant 3, and Defendant 4 are dismissed.
Form of the test
Elements stated Stated in the decision
형사재판에서 공소가 제기된 범죄의 구성요건을 이루는 사실은 그것이 주관적 요건이든 객관적 요건이든 그 증명책임이 검사에게 있으므로
Unofficial English translation
In a criminal trial, the burden of proof of the facts that constitute the constituent elements of the crime for which a public prosecution has been instituted rests with the prosecutor, whether such facts are subjective requirements or objective requirements,
Factors
- ‘적시된 사실의 허위성’
- ‘허위의 인식’
- 증명책임의 소재(=검사)
- 증명책임을 다하였는지 판단하는 기준
Unofficial English translation
• "the falsity of the facts published"
• "knowledge of falsity"
• where the burden of proof lies (= the prosecutor)
• the standard for determining whether the burden of proof has been discharged
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 11. 25. 선고 2009도12132 판결(공2011상, 70)
Unofficial English translation
Supreme Court Decision 2009Do12132 decided November 25, 2010 (Gong 2011 Sang, 70)
Decisions referred to
대법원 2010. 11. 25. 선고 2009도12132 판결(공2011상, 70)
Burden of proof
The prosecution Stated in the decision
그 적시된 사실이 객관적으로 진실에 부합하지 아니하여 허위일 뿐만 아니라 그 적시된 사실이 허위라는 것을 피고인이 인식하고서 이를 적시하였다는 점은 모두 검사가 증명하여야 한다.
Unofficial English translation
the fact that the published fact is false in that it does not accord with the objective truth, as well as the fact that the defendant published it knowing that the published fact was false, must all be proved by the prosecutor.
Open question and revisit condition
Where the state of mind of a person who took their own life can only be conjectured, what evidence would let a court hold that the non-existence of the alleged threat was proved beyond reasonable doubt?
The retrial judgment of the Suwon District Court on the same record will show how the burden was applied in practice. A later Supreme Court decision altering who must prove falsity and knowledge in publication defamation, or an amendment to Article 307(2) or Article 309(2) of the Criminal Act, would call for this entry to be read again.
Cross-family AI independent reading & axis check
7 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 7 of the 8 axes; the readings differed on axis 4 (form of the test).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
Both readings place the burden of proving falsity and knowledge on the prosecutor, yet the input flags a difference, which may come from one stating it as a general rule of the offence and the other applying it to the record.
증명책임을 다하였는지 판단하는 기준Raw 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 Suwon District Court, sitting on appeal, in its judgment of 22 September 2017 (2016No8544), found all the obstruction of business charges against the defendants proved and convicted Defendant 1 of defamation by publication. It reasoned that even if the victim had mentioned a lawsuit or damages claim at the meeting of 4 May 2015, the deceased, who accepted the company's proposal and favoured voluntary retirement, could hardly have been its target, so the alleged pressure could not be said to have caused the death. Defendant 1 nevertheless reported in definite terms, on subjective conjecture, that the deceased had been pressured and threatened, and so had intentionally stated a fact he knew to be false, with no substantial reason to believe it true.
Supreme Court standard: The Supreme Court held that the charge against Defendant 1 presupposed that he had given the statements underlying the articles to seven media outlets and that the articles reflected their content, and that the prosecution had done no more than present the articles, so the basic premise was not proved beyond reasonable doubt. Weighing the circumstances found below, including the company's consistent policy decisions, the deceased's role in the union and the contents of the suicide note, it held that the facts stated accorded with objective facts in their important parts and that Defendant 1 could not be said to have had even a slight awareness of their falsity. It found that the court below had misread the law on the burden of proof in defamation or had violated logic and the rules of experience and so exceeded the limits of free evaluation, reversed the whole judgment as to Defendant 1, the obstruction of business part included because of the concurrence under Article 37 opening paragraph of the Criminal Act, remanded this part to the Suwon District Court, and dismissed the appeals of Defendants 2, 3 and 4.
Distinguishing conditions
- A case in which the prosecution proves beyond reasonable doubt both that the stated fact is objectively untrue and that the defendant knew it untrue when stating it, so that the burden is discharged.
- A case in which the basic premise that the defendant made the statements to the journalists and that the articles reflected them is itself proved by evidence beyond the mere presentation of the articles.
- A charge of obstruction of business in which the issue is the force element alone, since the Supreme Court found no error in the court below's handling of it.
Record verification notes
Set the wording of each article against the defendant's own statement as recorded, here the telephone call with the reporter, and ask what the prosecution offered beyond presenting the articles, because that was the gap the Court identified. Then gather the objective record that tests falsity and knowledge: the company's dismissal and outsourcing decisions, the text messages of 2 May 2015, the meeting of 4 May 2015, the union role of the deceased and the suicide note. Keep in mind that the judgment as to Defendant 1 must be retried as a whole, obstruction of business included, since the two parts stand in concurrence under Article 37 opening paragraph of the Criminal Act, while the obstruction of business convictions of Defendants 2, 3 and 4 stand.
From the official text
Points at issue
허위사실 적시 명예훼손죄에서 ‘적시된 사실의 허위성’, ‘허위의 인식’ 등에 관한 증명책임의 소재(=검사) 및 증명책임을 다하였는지 판단하는 기준
Unofficial English translation
In the crime of defamation by publication of false facts, where the burden of proof (= the prosecutor) lies as to "the falsity of the facts published," "knowledge of falsity," etc., and the standard for determining whether the burden of proof has been discharged
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
원심판결 중 피고인 1에 대한 부분을 파기하고, 이 부분 사건을 수원지방법원에 환송한다. 피고인 2, 피고인 3, 피고인 4의 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns Defendant 1, and this part of the case is remanded to the Suwon District Court as to this part. The final appeals of Defendant 2, Defendant 3, and Defendant 4 are dismissed.
Provisions referred to
형법 제307조 제2항, 제309조 제2항, 형사소송법 제308조
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.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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