명예훼손죄의 전파가능성 법리에 관한 비판적 고찰

Abstract

The Supreme Court recognizes the public nature of defamation in cases where there is a possibility that such facts may be spread to an unspecified or large number of people, even if facts are individually spread to a small number of people, according to the principle of possibility of spread. The performance of the crime of defamation is an objective element, but because the theory of propagation is applied, it can be seen as a normative element and is a probabilistic concept. Since there is a possibility of abuse of the power of punishment due to the judge's arbitrary interpretation, an interpretation that narrows the scope of public performance is necessary. In other words, the theory of possibility of spread expands the scope of criminality such as defamation too unclearly, which corresponds to an analogical interpretation prohibited by the legal doctrine of criminality and may also violate the principle of clarity. In addition, criticism is raised that it violates the foreseeability of criminals and at the same time places responsibility for the results on the actor (a person in a close relationship and trust with the victim) rather than the act. Therefore, an argument is made for applying the theory of direct recognizability instead of the principle of transmissibility of precedents. In relation to this, it is necessary to examine the logic of the Supreme Court's majority opinion and dissenting opinion through the Supreme Court's 2020Do5813 decision on November 19, 2020, which recently upheld the legal principle of the possibility of spread, and explore problems and improvement measures. In addition, as a way to improve the crime of defamation, according to the legal principle of propagation, in the case of defamation by stating the truth and facts, there is a conflict with the basic rights of freedom of expression and the right to know, such as personality rights and freedom of privacy. Therefore, discussions on decriminalization should be considered, and civil damages rather than criminal intervention should be considered. We would like to review ways to resolve the issue through a compensation system and punitive damages system. In addition, as a way to improve the crime of defamation, we would like to seek a proposal to supplement the expansion of criminal punishment according to the judgment of public performance through the unified application of crimes related to honor by revising the crime of impunity against the will, which is a condition for prosecution, to the crime of pro-reporting.