사실적시 명예훼손죄 및 모욕죄의 재구성

Abstract

Different from a majority of OECD countries, defamation and insult are criminalized in Korea. Defamation by pointing out true facts as well as false facts regarding other persons is criminalized. Both civil and criminal sanction may be imposed on those who commit defamation and insult. The Korean Supreme Court has held that defamation may be justified when it is made for ‘public interests’ and attack against public officials and figures should not restricted unless they are made by malice and serious recklessness. It has also held that insult may be justified when it is partly used in the situation where the defendant emphasizes on the rightness of his/her opinion. The Constitutional Court held that the restriction of defamatory expressions against public officials and figures should be alleviated. However, this judicial decisions provide citizens with only possibility of being freed from criminal sanction in final stage of criminal process. Citizens who make defamatory or insulting expressions are in a danger of be investigated and prosecuted. They have to keep fighting with law enforcement authorities to change the possibility into reality. Thus ordinary citizens are likely to refrain from criticizing public officials and figures. In this context, the two crimes of defamation and insult produce “chilling effect” on the freedom of expression. For these reasons, a few number of scholars have argued that the two crimes of defamation and insult are unconstitutional, so abolished. This Article starts by reviewing the judicial interpretation of defamation and insult and clarify the requirements of justification. Then it argues that the Korean courts have modified and adopted the “actual malice” rule, which was established by the U.S. Supreme Court in the decision of New York Times v. Sullivan in 1964. Second this Article criticizes that the two crimes restrict the freedom of expression, critical expression against public officials and figures in particular. Finally it argues that defamation and insult against public officials and figures in a case related with ‘public interests’ should be de-criminalized and imprisonment should be removed from the list of penalties for the two crimes.