표현의 자유를 제한하는 모욕죄의 적정성 고찰 - 공적 인물, 공적 관심사안 관련 판례들을 중심으로 -

Abstract

The study aims to examine the appropriateness of restrictions on freedom of speech by insult. In July 2019, the Supreme Court presented sentencing guidelines to punish hate speech for insult. In the case of insult, the ranges are wide, which has an overly large chilling effect on freedom of speech. In a majority of countries, insult is excluded from crimes against freedom of speech, with only the Republic of Korea going against the international tide. In this study, as a result of examining the nature of insult through a precedent, the court does not apply the theory of public figures to insult. The court is in a position that the Justifiable Act clause of Article 20 of the Criminal Act alone can solve justification. In addition, the Constitutional Court consistently rules that Article 311's "insult" meets the principle of clarity and does not infringe on freedom of speech. The expressions of insult in cases related to public figures or public concerns were often mocked by parodying words, slang, and new words that were widely spoken at the time through major social issues or characters. Therefore, the justification of Article 310 of the Criminal Act might be an idea to apply mutatis mutandis to the Crimes of Insult to any case in which public interest is concerned. Moreover, it can be as part of a countermeasure to control the tyranny of decision-makers. As Crimes of Insult, as a clause, also punishes people for their behavior of expression like Crimes of Defamation, it would be in line with the balance of interests in the protection law by establishing an exemption clause such as grounds for preventing the illegality of Article 310 of the Criminal Act. The reason such exemptions are required separately is that the Korean court has applied rigorous standards to Article 20 of the Criminal Act for a long time, and if freedom of speech occurs because of frequent conflicts with other fundamental rights, it is difficult to receive exemptions from Article 20 of the Criminal Act. The Internet has established itself as mainstream media in Korea, wherein nearly every citizen expresses their political opinion through the accessible and fast-paced Internet. However, the Supreme Court's willingness to impose additional punishment for insult, citing the propagation of media, has problems in terms of effectiveness under the positive law. In addition, criminal penalties should be reconsidered at a time when 89% of the crimes of insult are fined. In particular, any military person who insults his/her superior shall be punished by imprisonment with prison labor without punishment of a fine. Furthermore, this is a blind spot for freedom of speech and, therefore, requires reformation. Moreover, how the Supreme Court regulates insult speech only through order-oriented thinking in a participatory media environment is unrealistic as well. The State will have to leave a certain portion to the citizens' self-purification mechanism until civil society forms a culture of mature public opinion, and regulations will also have to be sought more rationally within the framework of the law.