사이버명예훼손죄의 위법성조각에 대한 검토

Abstract

Libel on internet is characterized by the great probability of dissemination, high speed, interactivity, potentially widespread damage, and endurance. Due to these characteristics, considering the damage that can be done in an instant, cyber libel should be punished more severely than off-line libel. On the other hand, both sides of the debate may respond and rebut rapidly on the internet, making the internet a medium for public discourse. Considering this contribution to the public interest, it is necessary to protect fair criticism on the internet. Hereupon are examined the reasons for establishing the crime of cyber-libel and arguments for an affirmative defense clause. Some argue that 'aim to slander' in ICNA article 70 cyber libel is unnecessary and that ICNA should include an affirmative defense against cyber libel. However, an 'aim to slander' is both a punishment aggravate and threshold requirement in cyber-libel. The 'aim to slander' is also in an exclusive relationship with 'public interest'. Therefore it is not necessary to establish an affirmative defense clause in ICNA. In case of veracity misconception, on-line libel and off-line libel are not treated differently. In veracity misconception Supreme court judged misconception should have a reasonable reason in order for there to be an affirmative defense to libel. However, the 'veracity' requirement in article 310 of the Criminal Act is a requirement for affirmative defense, and this article demands objective truth. Therefore the misconception of veracity is the misconception about premise for the affirmative defense. According to the theory of legal effect qualifying responsibility, the requisite mens rea would not exist and the libeler should not be punished. But the Supreme Court judged that reason must be given for the misconception in order for an affirmative defense to stand. Under existing law this interpretation is analogical interpretation disadvantageous to the accused. The precedential legal position is desirable when it comes to protecting an individual's good name, however, so it is better to reflect these concerns in a revision of the criminal law. In this context it is necessary to examine the revised bill of criminal law Representative Young sun Park proposed.