일부 허위가 포함된 공적 인물 비판의 법적 책임- 공직선거법상 허위사실공표죄 판례 비판을 중심으로 -

Abstract

In a democratic society, it is a necessary and inevitable procedure to check and criticize candidates for public election. During this procedure, however, matador and false assertion is often used to undermine and destroy rival candidates. Thus, the Article 250 of the Public Election Act (“Act”) provides the crime of announcing false facts in public elections. Since recent imprisonment of a former Congressman, Mr. Chung Bong-Joo for violation of the Article 250 of the Act, there has been a hot debate over the legitimacy of the Article 250 and the interpretation of the Supreme Court of Korea. As of now two revision bills on this issue had been submitted for review. During the presidential race in 2007, Mr. Chung criticized that Mr. Lee Myung-Bak, who was then a presidential candidate for the Grand National Party, now the President of the Republic of Korea, was in fact a real owner of the BBK, an investment consulting company. Mr. Kim Kyung-Jun, the CEO of BBK whose co-founder was Mr. Lee, was found to have committed serious corporate crimes. Although the Prosecutors’ Office officially announced that Mr. Lee was cleared of BBK stock manipulation, the public suspicion was not removed and “Who owns the BBK?” continuously became the vital issue of the presidential race. The lower courts held that Mr. Chung is guilty and these judgements were confirmed by the Supreme Court. By criticizing these decisions, this Article argues that political attack against candidates in public election should not be criminally punished even if such attack was later proven to be grounded on false facts, but deemed to be based on considerable facts at the time of the attack. This Article, in particular, criticizes that the Supreme Court restricted political attack against public figures by alleviating the prosecution’s burden of proof in the Article 250 cases.