Anyone who defames another by publicly alleging facts can be punished, even though the facts are true. Because In korean criminal law there are the article, “A person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won(Art. 307 (1))”. Furthermore, “A person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a fine not exceeding ten million won(Art. 307 (2))”. But If the facts alleged under Article 307 (1) are true and solely for the public interest, the act shall not be punishable(Art. 310). However, there is no rule about the unsettled facts(It’s not sure whether the publicly alleging facts is true or false). In practice, this cases are applied to Art. 307 (2). And the practice deal with the unsettled facts in the field of a mistake of face. But in Art. 307 (2) the “fale facts” is a element of a crime, so that the unsettled facts should be applied not to Art. 307 (2), but Art. 307 (1). Otherwise, the unsettled facts can make misunderstand to the public by the guilty or not guilty of a judge. Because if the judge found the defendant guilty, then the unsetlled fact turn to be a true fact in spite of not proving of the fact. But if the judge found the defendant not guilty, then the unsettled fact turn to be a false fact. Therefore, if a judge can not prove the truth of the unsettled fact, then the Art. 307 (1) must be applied.

I. 대상판례
  [제1심 판결] 서울남부지방법원 2011.11.24. 선고 2011고정2444 판결
   [범죄사실]
   [증거의 요지]
   [법령의 적용]
   [위법성에 대한 판단]
  [항소심 판결] 서울남부지방법원 2012.11.15. 선고 2011노1718
   1. 항소이유의 요지
   2. 공소사실 및 원심의 판단
   3. 당심의 판단
   4. 결 론
  [대법원 판결] 대법원 2013.5.9. 선고 2012도15345 판결
   3. 결 론
 II. 문제제기
 III. 형법상 명예에 관한 죄의 이해
  1. 현행법상 명예와 관련된 법규들
  2. 모욕죄의 적용구조
  3. 명예훼손죄의 적용구조
 IV. 사안풀이
  1. 적용법조
  2. 사실오인 문제로 전환
  3. 전제사실의 확정 효과문제
 V. 결 론
 [참고문헌]
 [Abstract]

• 이원상(조선대학교 법과대학 법학과 조교수) | Lee, Won Sang