명예훼손죄 비범죄화에 대한 비판적 검토

Abstract

The Article 307 of the Criminal Act of Korea provides for punishing a person who defames another by publicly alleging facts or false information. If the defamation occurs in cyberspace such as the internet, it is subject to aggravated punishment under the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. However, it is argued that if a person is punished for defamation by alleging true facts, it violates the right to know, freedom of expression, and freedom of speech and this defamation based on true facts shall be decriminalized for the following reasons. First, criminal defamation raises a problem of hastening the time of Criminal Act's intervention before infringement of legal interest. Second, the range of “true facts” that might damage one’s reputation is unclear. Third, it's difficult to determine how much social reputation the victims of defamation have. Fourth, social reputation that is harmed by alleging true facts cannot be considered as “honor” which is worth being protected through punishment(criminal law). Fifth, defamation based on true facts can be justified when its truth and public interest are recognized under the Article 310 of the Criminal Act, which raises the question whether the public interest element has such an attribute. However, this argument can be criticized as below. First, it can prevent excessive punishment to understand criminal defamation as a specific risk offender and to reverse the theory of propagation possibility. Second, determining what are true facts, the public interest and the purpose of defamation can be resolved by clarifying specific criteria. Third, individuals' privacy and honor, which are the core elements of human rights, should be protected prior to the freedom of expression or right to know. Fourth, protection of reputation cannot be fully achieved solely by civil compensation in the light of severity of infringement caused by cyber defamation. The right to know, freedom of expression and freedom of speech are constitutional values that must be guaranteed. Nevertheless, the right to privacy or personality of the victims or his/her family shall not be ignored. It is inappropriate to completely decriminalize defamation under the current circumstances where the civil compensation for damage can replace criminal punishment. Therefore, some legal elements of defamatory crimes that are open to polysemous interpretation, such as ‘in public', should be suggested with detailed and specific classification of their application scope and criteria and principle of propagation, which extends the scope of punishment to extremes, should be abrogated to diminish the possibility of excessive punishment and, accordingly, reduce public resistance to criminal defamation. However, since the negative view of decriminalizing defamation does not suggest infringing the right to know of public figures, criminal defamation through true facts about private figures should be retained, but defamation about public figures can be considered to be decriminalized.