Güney Kore Yargıtayı ruled that the profanities uttered by a person towards the son of an acquaintance during a dispute do not constitute the crime of insult. The high court stated that if the profanities are spoken in an environment where only family members can hear them, the requirement of 'publicity' (being committed in a public setting), which is a legal element of the crime of insult, cannot be met. In the two previous local court stages, the defendant was found guilty and fined, but the Yargıtay overturned this decision and sent the case back to the lower court for a retrial. This decision sets an extremely important precedent in terms of redrawing the legal boundaries between the private sphere and the public sphere. Authorities have initiated a legal debate on how individuals with a tendency towards privacy will be protected against criminal liabilities.
The incident occurred in May 2023 in Seosan, Güney Kore, during a land boundary dispute between two parties. Defendant A turned to the 15-year-old son B of the neighbor he was arguing with and uttered sentences containing severe profanities. It was claimed that the defendant targeted the child by referring to the youth's mother and with words that even constituted a threat. Immediately after these words were spoken, an investigation was launched by the prosecutor's office upon the complaint of the victim's side, and a lawsuit was filed. This spatial and social proximity paved the way for the court process to accelerate and reach the Yargıtay. The fact that the case reached the appeal stage shows how strictly the Korean judicial system handles the concepts of verbal abuse and insult.
The court of first instance and the subsequent appellate court evaluated the defendant's actions as a clear insult and found him guilty. The court of first instance fined the defendant 1 million won, and the second-instance court imposed a fine of 500 thousand won. The local courts concluded that the defendant's words constituted an attack on personality rights. However, following the verdict, the defendant argued that the requirement of 'publicity' was not met and took the case to the Yargıtay. This situation revealed a significant difference between local courts and higher courts regarding the interpretation of the elements of the crime. The appeal process offered a critical opportunity to resolve uncertainties arising in the application of law in similar cases.
The 3rd Chamber of the Yargıtay focused on the basic conditions of the crime of insult regulated in Article 311 of the Criminal Code of the Republic of Korea. The relevant law stipulates that those who insult a person 'publicly' (in a public manner) will be punished by up to one year in prison or a fine of up to 2 million won. The Yargıtay emphasized that the concept of 'publicity' in the law requires that the words be spoken in a situation where they can be perceived by an indefinite or large number of people. According to the established precedents of the high court, even if the speech is directed at a small group, if there is a possibility of those words spreading to wider audiences, the 'publicity' requirement can be sought. In contrast, the fact that the speech is directed only at specific and limited few people is accepted as a strong justification for denying publicity. At this point, the court analyzed how legal norms can be harmonized with the realities of daily life.
The Yargıtay determined that in the concrete incident, the defendant's profanities were heard only by the victim's father and the defendant's own parents. The high court pointed out that the likelihood of the defendant's mother and father spreading these profanities around or conveying them to others was 'very low'. For this reason, the court ruled that even under the difficult circumstances of the incident, there was no evidence 'beyond a reasonable doubt' that the act took place in a public setting. Consequently, the Yargıtay overturned the criminal decisions of the previous courts and stated that the defendant should be acquitted of the 'public insult' charge. The case file was sent back to the Daejeon District Court for a final decision. This precedent decision has caused profound repercussions in the Korean legal world in order to clarify the boundaries of criminal liability for verbal abuse experienced in private settings.
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