언론보도로 인한 명예훼손 불법행위의 성립요건 - 위법성을 중심으로 -

Abstract

Humans have been estimated by efficiency alone under the control of neoliberalism. To overcome this crisis from neoliberalism, among other things, we have to put more stress on democracy. For each of them is respected as complete person in genune democratic society. Each of community members freely exchanges opinions and then decides what his or her final opinion is. As a result, the majority opinion is formed. Democracy is the system which the intent of community is determined according to the majority opinion. Therefore, considering the current threat from neoliberalism, the freedom of expression is more important than anything else. By the way, if reporting the truth alone leads to liability for damages for the tort of defamation, the freedom of expression might be intimidated, and eventually, democracy might go backward. Thus, the normative idea of fame(that is, social assessment of true value of the person concerned) need to be introduced. Now, the Korea Supreme Court has resolved the conflict between freedom of expression and protection of fame as competing constitutional interests by developing barring-illegality jusfications peculiar to defamation. The barring-illegality jusfications consist of ⅰ) the publicity of the contents of the report concerned, ⅱ) the publicity of its purpose, and ⅲ) the truthfulness of its contents or the existence of reasonable cause the media concerned finds the contents to be true. In other words, the barring-illegality jurisprudence is the way to balance reputation and freedom of expression. However, truthful reports merely deprive the reported of reputation that they was not entitled to in the first place. To put it another way, they are not associated with reputational integrity, either directly or indirectly. Accordingly, in the case of reporting the truth, we must take the freedom of expression alone into consideration. In turn, the truth must be a complete barring-illegality jusfication to enhance the freedom of expression. Whether or not there is a reasonable cause the media concerned finds the contents to be true is basically a subjective problem. Even if it is the breach of duty of care, the idea of illegality is essentially objective. To sum up, the idea of illegality is the breach of objectively beable highest-degree duty of care imposed by positive law system. On the other hand, even if it also is the breach of duty of care, the idea of fault is essentially subjective. Therefore, in principle, the existence of reasonable cause the media concerned finds the contents to be true is associated with the problem of fault or intention. In connection with the right of fame, the results of infringement on it are not revealed explicitly, while in connection with typical absolute right like the right of life, ownership, etc, the results of infringement on them are revealed explicitly. For this reason, in connection with the right of fame, whether or not the act concerned is illegal depends on the breach of objectively beable highest-degree duty of care imposed by positive law system, not the results of infringement on the right of fame.