인터넷상 명예훼손·모욕죄와 피해자의 특정

Abstract

The crimes against reputation is an act to lower external valuation on ‘person’ according to statutes, common views and precedents, etc to let the third party meeting with expression act not to know who is an object being given valuation lowering act. As ‘Name in full’ represents a man who is subject of honor in real world. so ‘ID’ performs same function on cyberspace. Being different from natural association of meaning with the ones who have ‘name in full’ in real world, ‘ID’ on cyberspace has only meaning of personal identification symbol that identifies the one who exists behind the scenes so that it cannot be thought to be same with a ‘person’ from point of view of natural meaning: Therefore, normative equality of both can be admitted only limitedly. When ID is classified into four types, that is to say, completely unrecognizable type, semi-unrecognizable type, semi-cognizable type and completely cognizable type, completely cognizable type only admits of normative consistency between ID and the one who exists behind the scenes except for exceptional case that the one discloses his or her identity by himself or herself and either an actor in the use of website or the third party acknowledges such a fact. In other words, the ID cannot be thought to be ‘person’ who is an object of crimes against reputation from point of view of intentional acts of an actor at remaining types, and it cannot be thought to make a specification of the victim from point of view of the third party's recognizable possibility. In such a case, therefore, either defamation or insult on ID is difficult to admit of it. When lowering of valuation on ID in either defamation or insult is punished from point of view of needs of realistic penalties despite such a theoretical fault, such aoreticis al faulbe thought to be proper from point of view of the Principle of “nullum crimen, nulla poena sine lege”. If such a punishment is thought to be required, the act shall be carefully reviewed to legislate it based on the principles of appropriateness.