명예훼손죄의 해석, 적용상의 몇 가지 문제

Abstract

Defamation is the crime of which occurs ordinary, even though defamation or libel is serious crime in Korean Criminal Act. However, sometimes it is doubt whether it is really criminal or not that some case where becomes the problem as expected even until of fact like this form becomes the defamation. If only ‘statement of fact (assertion of fact, fact disclosure)’ is sufficient of the defamation provisions, it fulfills individual criminal component easily, such a criminal act must not be illegal in so far as defamation itself is true and contribute to public interest. These problems are stem from its provision in our criminal act is too vague and wide. It is because the establishment precise standard in justifying of defamation is insufficient from theory or practical parts. The prohibition provisions of criminal law are common in every human community from the point whose it is general to punish the harmful behavior to community. Meanwhile, it has different features in its specific contents because of historical and cultural background. It becomes known well where also the case of defamation. This study aids to several problems on interpretation and application of defamation, especially the provision of defamation and its justification. First of all, the article 307 (1) of criminal act is too wide and vague as it mentioned, so it does not accomplish the function. Secondly, it examined general justification provisions which are not functioned besides article 310 of criminal act. The article 310 of criminal act is a ‘special’ provision, but it does not override or cast by other general justification provisions. And It is reconfirmed that the article 310 is not the exclusive other justification provisions, but ‘specially’ legislate because of justification of the case related defamation in the political, press activity.