역사왜곡표현처벌법의 정당화 근거와 한계- 혐오표현 처벌 논거에 대한 비판적 검토를 중심으로 -

Abstract

It is noteworthy that the issue of historical distortion is currently being addressed from the perspective of hate speech. Article 8 of the “Special Act on the May 18 Democratization Movement,” a representative law in South-Korea for punishing historical distortion, imposes criminal penalties for spreading false information about the May 18 Democratic Movement. Recently, the most persuasive justification for this Act is the perspective that spreading of false information about history constitutes hate speech that harms the human dignity of the members - the parties - and associates of that historical event, or constitutes punishable hate speech that disrupts social order and divides public opinion. However, there are three problems with this. The first issue is that criminal law intervention for the collective insult felt by members of a historical group, which inevitably arises from the interpretation of a specific history, is impossible under the current interpretation of criminal law. The second issue is that it has not been empirically proven whether historical distortion truly disrupts social order or divides public opinion. Lastly, addressing the interpretation and evaluation of history within the realm of hate speech is problematic because it means that historical interpretation, as a form of expression, inherits the uncertain nature of hate speech. This directly relates to the issue of the essential purpose of criminal sanctions against historical distortion—namely, the uncertainty regarding what legal interests are being protected and the ambiguity of the legal norms. The turbulent modern and contemporary history of South Korea, which is at the heart of penalizing historical distortion, is rooted in the ideological framework corresponding to the context and thoughts of that era. Therefore, interpretations of this history made by future generations are highly dependent on the ideologies defined by individuals and society. The criteria for the distortion of historical interpretation are also relative and fluid accordingly. Criminal sanctions for individual beliefs, ideas, and expressions constitute an unjustifiable infringement on personal liberties. These arbitrary evaluations and legal applications based on subjective standards of historical interpretation must be abolished promptly to prevent their use as tools of political struggle rather than as constructive measures for the future.