진실적시명예훼손죄의 위법성조각사유에 대한 판례의 판단기준 검토- ‘공공의 이익’을 중심으로-

Abstract

There is a sharp division of opinions between the maintenance and abolition of criminal defamation by publicly alleging facts. The justification clause of Article 310 of the Criminal Act can help strike a balance between freedom of expression and defamation by publicly alleging facts. However, a chilling effect can deter freedom of expression, and the concept of public interest, one of the elements for justifying defamation acts has been criticized as vague and ambiguous. In particular, in the case of defamation against a private person, it is questionable what actually constitutes the public interest. According to this analysis, which analyzed the previous decisions of criminal courts that applied the test criteria for the public interest to decide the applicability of justification clause in the cases of defamation against a private person by publicly alleging facts, general or specific standards applicable to the matter of public concern, one of the elements constituting public interest, were not found, and it was also difficult to objectively categorize the accumulated precedents, such as similar decisions per the criteria element or type of matter. In addition, there are many cases in which appellate courts overruled trial courts’ decisions. Hence, criminal defamation by publicly alleging facts is unlikely to satisfy the principles of clarity and predictability, which are fundamental principles of the criminal law, although the justification clause safeguards it. If we consider the chilling effect problem associated with freedom of expression, it is better to abolish criminal defamation by publicly alleging facts and enforce applicable civil remedies.