종북, 주사파 표현에 의한 명예훼손 - 대법원 2018. 10. 30. 선고 2014다61654 전원합의체 판결

Abstract

This paper examines the case in which whether defamation liability is established by the expression of “Jongbuk”(following North Korea), “Jusapa”(Ju-che Ideologists). (1) The majority opinion of the decision commented that there is room for the defendant’s writing to express opinions, but this should be regarded as factual. The core of the defendant’s writing is that “the plaintiffs belong to the Gyeonggi Eastern Union, which is the Jongbuk-Jusapa organization, and the plaintiffs are Jongbuk-Jusapa.” The expression “Jusapa” seems to have a relatively clear meaning. The expression “Jongbuk” was also used in the defendant’s writings in a similar term to “Jusapa”. Whether the plaintiffs belong to the Gyeonggi Eastern Union is possible to prove its authenticity. Whether the Gyeonggi Eastern Union is a Jongbuk-Jusapa organization, and whether the plaintiffs are Jongbuk-Jusapa, seems to be able to prove its authenticity. Since it is about political ideology, it may be questioned whether it is possible to prove it. But proof can be done by means of judging the political ideology of the plaintiffs by their political claims and activities. (2) The majority opinion and the dissenting opinion of the decision were in opposition to each other on whether the defendant’s writing met the reasonable degree requirement for elimination of illegality. It is not desirable to assume that the reasonable degree requirement has been met when there is material that contradicts the defendant’s writing. However, it seems undesirable to acknowledge the illegality of the defendant’s writing and hold him responsible for tort. The plaintiffs are public figures, and the defendant’s writing is about the political ideology of the plaintiffs and can be seen as an expression of public concern. It is necessary to develop a law for judging defamation illegality that allows us to carve out illegality regardless of whether or not the reasonable degree requirement has been met. Consideration may be given to the application of laws developed in relation to defamation of public officials to cases where the political ideology of public figures is at issue.