A Study on the Requirements for Establishing Tort of Defamation for the PROTECTION of Personal Rights - Compared Mainly to Japanese Law

Abstract

In order for defamation to be established, the abuser must be intentional or negligent, and in Article 709 of the Japanese Civil Code, the infringement of rights is required to establish tort. In principle, there is no problem in this respect from the standpoint of personality rights. Because illegality is required in the establishment of illegal acts, and acts that infringe on the right to personality are illegal in principle, so defamation is established unless there is a reason for illegality. It is explained that nominal damages are not recognized in Japan under the English-American Law, but recent cases have been recognized in the field of privacy rights to recognize nominal damages. The problem is that in Japan, the infringement of the honorary personality of the deceased in relation to the legal interests of the defamation charges in Japan is a direct protection theory. It is classified and explained. Direct protection theory thinks that indirect protection is insufficient, and actively discusses the possibility of recognizing the personality of the person as its own legal interest. That is to say, even a messenger must possess personal value and claim that the infringement of that value must be protected by law. The Korean Civil Law is generally regarded as extinguished due to the loss of the subject due to the provisions of Article 3 and the nature of the right of personality, which is a perpetual right. However, if the copyright law and the criminal law provide for the protection of the personal right of the person, and if it is impossible to prohibit the acts such as defaming the honor of the person, the human rights and dignity of the constitutional law cannot be guaranteed. In addition, today's rapid development of mass media often damages the copyright or honor of the victim, and the practical necessity to recognize the personality is also recognized.