이른바 전파가능성 이론에 대한 비판적 고찰

Abstract

In the legal constituent elements of defamation, the word ‘publicly’ represents the modality of an act and functions to limit the scope of defamation’s establishment. It is the current general view to understand its meaning as “in a condition that unspecified person or many persons can recognize the speaker’s statements”. According to this concept definition, the publicity cannot be admitted in a “in a condition that specified and few persons can recognize the speaker’s statements”. Nevertheless, the Supreme Court admits the publicity when the specified and few persons have a possibility to propagate the speaker’s statements. This is the so-called theory of propagation possibility. In the recent 「Supreme Court en banc Decision 2020Do5813 Decided November 19, 2020」 there was a fierce battle over whether to maintain the theory of propagation possibility or not, but it was concluded that the Supreme Court would maintain it. However, it is difficult to derive the theory of propagation possibility within the possible meaning of the word ‘publicly’, so this theory cannot but be said to be the result of analogy. From the perspective of supplementary character and fragmentary character of the criminal law, it is difficult to accept the theory of propagation possibility because it makes the function of the word ‘publicly’ meaningless and allows the criminal law to intervene excessively through this. In accordance with the principle of nulla poena nullum crimen sine lege, the modality of an act should be satisfied at ‘the time of the commission of an act’. The theory of propagation possibility is not appropriate because it understands whether the publicity as the modality of an act is satisfied or not by relaxing ‘the time of the commission of an act’ in time. And the word ‘publicly’ should be reinterpreted to mean ‘in a condition that many persons can recognize the speaker’s statements’ to match the word and its essence. In the case that an actor states facts ‘in a state that unspecified and few persons can recognize the speaker’s statements’, it can be considered to set ‘when the persons propagate the statements to the many persons’ as an objective punishment condition(de lege ferenda).