명예훼손죄의 구성요건인 ‘사실’의 의미

Abstract

As the crime factor 'fact-alleging' is needed for defamation crime in korean criminal law. Legal protected interests of defamation crime are the social honor, that means social evaluation for worth of personality or behaviour of person. So, fact-alleging estimated as the crime factor of defamation should be a kind of behaviour that can derogate person's social honor. Therefore, alleged fact should contain the matter that can derogate person's social honor : it's the first element of crime factor for defamation. It means that, we have to prove the next proposition to be true : when people recognize the alleged fact, social appraisement for targeted person must be deteriorated. But there are no concrete types of facts that can derogate social honor in current criminal provision for defamation, also current academic opinions and general interpretations of legal sites cannot suggest concrete standard for the fact as criminal factor without 'enough fact for deteriorating person's social evaluation'. Specially in case of that, the fact is not the contents can be estimated social general 'adverse fact', but value neutral fact or objective condition, whether it can be come under 'fact-alleging' as the crime factor of defamation or not, it is very difficult problem for solution of specific case. On the other hand, fact-alleging as the crime factor of defamation doesn't cover individual subjective deliverance or evaluation, in relation of freedom of expression that can be guaranteed by constitutional law. So fact-alleging for defamation crime should not be a expression of subjective opinion or valuation, but a expression of fact. For such problems this thesis tries to find concrete types of fact for defamation crime with analysis of cases in current judical precedents of korean supreme court.