사자명예훼손 관련 입법의 체계정당성에 관한 고찰

Abstract

In the event of defamation of a dead person through media reports of false facts, the provisions for defamation of a dead person under Article 308 of the Criminal Act and the provisions for the protection of personal rights of a dead person under Article 5-2 of the Media Arbitration Act Act On Press Arbitration And Remedies, Etc. For Damage Caused By Press Reports may be applied at the same time. However, the two legislations have different aspects in terms of the object of protection (protected legal interests), the content of regulated actions (constituent elements), and the period of protection (limitation periods for public prosecution), it may be questioned whether the two legislation violates the constitutional principle of the systemic consistency of legislations. In terms of the object of protection, the provisions for defamation of a dead person under the Criminal Act protect a dead person’s honor. Meanwhile, the provisions for protecting the personal rights of a dead person under the Media Arbitration Act are not only for a dead person’s honor but also for the secret and freedom of life, liberty, body, privacy, portrait, name, voice, dialogue, works, private documents, and other personal values. As for the subject of protection and the content of the act, these regulations are different. Regarding the content of the act, the provision of the Criminal Act for defamation of a dead person requires the publicly alleging of false facts, while the provision of the Media Arbitration Act generally does not ask whether the news content is false, so there is no need to state false facts. The subject of protection of the crime under the Criminal Act, stipulating punishment, is “honor,” which is only one of the contents of the personal rights protected by the provisions of the Media Arbitration Act, and punishment is imposed only if “false facts” are publicly alleged. Meanwhile, the Media Arbitration Act provisions also apply to cases where the “honor” of a dead person is violated by specifying “false facts.” In other words, the legislator stipulated the “false fact” was evaluated as the most illegal among the various types of infringement of the dead person’s rights, and only the violation of a dead person’s “honor” was subject to punishment. In this respect, it seems complicated to say that both legislation has the same subject of regulation. In the issue of violating the systemic consistency of legislation, it is not considered the systemic consistency of legislation violation because the disciplinary purpose and object of the two pieces of legislation cannot be regarded as the same. If the subject of both regulations is interpreted to be stipulating different effects on the same subject, noting only the case where a dead person’s “honor” is infringed by indicating “false facts.” In that case, it may be interpreted as a problem of violation of system legitimacy. However, the legislator intends to allow the perpetrators to receive punishment under the Criminal Act and at the same time allow the victims to use the remedies under the Media Arbitration Act for relief if alleged “false facts” infringe the “honor” of a dead person. This addition will further protect the victims. In other words, it does not mean that only one of the two regulations should be applied arbitrarily, but that both should be applied. In this respect, it is difficult to say that the two regulations are conflicting. Even if the two regulations are regarded as violations of the systemic consistency of legislation, in the case of defamation caused by false facts, it can be justified in consideration of the legislator’s intention to strengthen the protection of victims by applying both regulations.