민사판결에서 인정된 사실과 명예훼손죄에서의 허위사실판단

Abstract

The object judgment reaffirmed the precedent of the previous case for the timely meaning of the facts necessary for the constitutional defamation, and the method of distinguishing it from the opinion of value judgment. However, for the first time, it should not be construed as a “timely provision of false facts” in regard to the dissemination of allegations or opinions contrary to facts recognized through civil judgment. In the interpretation of different laws on the same legal object, it is always questioned whether to pursue the unity of the law or the uniqueness of the criminal law. Of course, if the “unity of the law and order” is promoted, it may be advantageous for ordinary people who are out of the law to avoid the confusion of illegality coming from the difference of law and contributing to legal stability more easily. However, the criminal law is a penalty for depriving the basic rights of the individual because the legal effect of the law is inevitable. Therefore, even if it is illegal in law, the establishment of crime should be grasped from the standpoint of criminal law. Furthermore, in addition to the ‘supplementary nature’ of criminal law as a means of social control, the property of this criminal law should be maintained when considering the harmfulness of punishment, since it has the characteristic of ‘fragmentation’ that is a very small fraction of such means of social control.