명예훼손죄의 ‘전파가능성 이론’ 유지 여부 - 대상판결: 대법원 2020. 11. 19. 선고 2020도5813 전원합의체 판결 -

Abstract

Due to the rapid development and diversification of the media, there is a high possibility of quickly uncontrollably spreading of a fact that may damage an individual’s reputation and the necessity of punishment for defamation is undeniable. However, criticism has continued that the theory of the propagation possibility of precedents overemphasized the protection of personal reputation, and that it exceeded the meaning of the elements of crime stipulated by the criminal act. The Supreme Court's ruling on November 19, 2020, the issue of whether to maintain a firmly supported precedent that recognizes the publicity of defamation if there is a possibility of propagating. Although there were opposing opinions that acknowledging publicity because of the possibility of propagation is an interpretation that is unfavorable for the defendant and contrary to the criminal justice principle as a result of the creating a new legal requisite of the possibility of propagation. However, it was judged that it should be maintained as it is still valid in terms of legal and practical terms. However, there is a concerned that the propagation possibility theory could be arbitrary judgement and abuse of punishment, and it is necessary to interpret the meaning of publicity as a situation that can be recognized by many people. It is reasonable that the standards for determining whether defamation charges are judged is not whether the possibility of spreading, but whether the expression at issue itself is open and public. It is necessary to prevent confusion of people and investigation institutes by cleary revising Article 307 of Criminal Act.