사실적시 명예훼손죄의 비범죄화에 관한 입법론적 검토

Abstract

According to our Criminal Law, even if the statement are true, it can be libel. Only if the statement meets the requirements of Article 310 of the Criminal Act etc., the illegality can be counteract passively. The court acquit a person of libel in many cases by judging elastically if the statement meets the requirements to protect the freedom of expression and right to know. The honorary right is important basic right for the humanly and happy life so it is not inferior to the right of life and property rights. Especially considering that by the development of social networking sites, libel lead to serious effects such as mental murder, it is not desirable to regulate libel acts only privately and to leave them entirely outside criminal punishment. Moreover no matter how true it may be, public disclosure of other people's privacy is violation of the basic constitutional right of privacy and freedom and other people's privacy is not the subject of the freedom of expression and right to know. However, the public must know about the performance of public officials so public disclosure of the truth about the performance of public officials is not crime but a natural right and duty of the people in a democratic society. Also freedom of expression of the people is absolutely superior to the right of honor of the public so the penal code for libel goes against the principle of proportion. In addition, not a few politicians are using the libel penalty as a means of covering up the truth in reality. Therefore libel must be decriminalized if the statement is the truth about public domain of public figures. We need to set up a strict category of public figures that are subject to non-crime, because the honorary right is quite limited. High rank officials and politicians are included in the category because they are people who have a significant influence on the political decision of the people and who have to accept the people's ongoing monitoring and criticism for their performance. Referring to Germany's personal domain theory, public areas are social areas, public areas and private areas related to the execution of tasks. I suggest a detailed revision by inserting a clause to limit the victim of a defamation offence in the section of the penal code of libel. Meanwhile, public disclosure of the truth about the performance of public officials is a natural right and duty of the people so it is not illegal act by civil law and for the consistency and clarity of the legal system, it is reasonable to decriminalize other clauses such as the National Network Act and the Public Official Election Act, which are related to defamation.