명예훼손행위의 위법성조각사유로서의 공익성 판단과 공적인물 이론

Abstract

Article 310 of Korean Penal Code prescribes 'public interest' as a criterion for defamation which can make libel action lawful. Civil law treats defamation as tort(Article 750 of the Civil Code) but it does not have any specific article like the article 310 of the Penal Code. That is the reason why Korean Supreme Court adopted criteria on the article 310 of the Penal Code to solve civil cases. But further concrete factors are needed to define 'public interest'. It could be a way to consider some foreign theories particularly the concept of 'public figure' from the U.S. to establish our own standards. Korean Constitutional Court and Supreme Court are already influenced by the public figure theory. The public figure theory originated from New York Times v. Sullivan case in the U.S. The U.S. Court distinguished public officials from private individuals using different criteria for judgement since this case, and the principle gradually applied not only to 'public officials' but to 'pubic figures'. In Korea, this public figure theory is categorized as public interest. However, the U.S. Court held that a public official plaintiff in a defamation action relating to his official conduct must prove that the defendant published the defamatory falsehood with actual knowledge of its falsity or with reckless disregard as to its truth or falsity, which called 'actual malice'. That is, public figure theory is rather related to authenticity - the matter of whom to prove its truth - than public interest. Public figure principle is still not enough to describe whom to call public figures and what is public interest. It has, however, significance itself in criminal law as the trigger for setting the detail criteria to decide if the defamatory action has public interest prescribed by the article 310 of Korean Penal Code.