Seoul Criminal Attorney | Seoul Attorney Obtains a No-Charge Disposition for a Client in a Defamation of a Deceased Person Case

This was a tragic case in which two people died in a wrong-way traffic accident in a city in Gyeonggi-do.

A few days later, the client visited a memorial space set up near the scene of the accident and left a note he had written in mourning for the victims.

The note left by the client was reported in the media on the ground that it had caused serious offense to the bereaved family, and a police investigation began into the act as one that defamed the deceased through false statements.

Accordingly, the client came to be investigated on the charge of defamation of a deceased person.

The client stated that he had written the wording solely to emphasize the tragedy of the traffic accident and to convey the importance of punishing the perpetrator.

Contrary to his intention, however, the matter escalated into a legal problem, and the client felt extreme anxiety and fear.

In these circumstances, he sought the attorney's help.

What is defamation of a deceased person, the offense alleged against the client?

The attorney identified the main issues in this case as whether the client's expression amounted to an allegation of fact and whether he was aware that he was alleging a false fact.

The attorney explained that an allegation of fact, as a concept contrasted with an expression of opinion that conveys a value judgment or evaluation, means a report or statement concerning a specific past or present factual relationship in terms of time and space.

For this reason, there is a judicial holding that the purpose of the provision is not to prohibit expression whose content can be proven by evidence, nor mere exaggeration or figurative expression.

The attorney explained that, although the content the client wrote in the note was indeed inappropriate, it was a figurative expression made by way of comparison and therefore did not appear to satisfy the subjective element of defamation.

Based on Supreme Court precedent, the attorney emphasized that the client's expression was not so much an allegation of a specific fact as it was an opinion that figuratively expressed the tragedy of the accident.

In particular, the attorney argued persuasively that the wording was not a false report or an intentional distortion of the facts, but rather an expression based on the subjective feelings the client had upon seeing the accident.

The attorney argued that defamation of a deceased person is a crime requiring a complaint to prosecute, so that punishment is possible only if the victim's bereaved family files an express complaint.

In this case, the bereaved family all withdrew their intent to file a complaint, and it was accordingly determined that there was no right to prosecute.