통신의 비밀과 공익 - 대화비밀공개죄의 위법성조각사유를 중심으로-

Abstract

This paper deals with the justification defense against the Article16 Paragraph (1) No. 2 of the Protection of CommunicationsSecrets Act(PCSA) of Korea, which punishes those who “discloseor reveal communications and conversations, which are illegallywiretapped.”Legislative of Korea has already proposed 5 bills to bring a newjustification defense into the PCSA. And apparantly their ideas andwordings came from the ‘X-file Scandal’ of Korea and the twoSupreme Court Decisions on that: 2006Do8839, decided March 17,2011(en banc) and 2009Do14442, May 13, 2011. These bills intendto relieve from criminal charge against the persons who made the‘media report or accusation to the public cause’, against which theSupreme Court has ruled. The main subject of this paper is to scrutinize the necessity andeffectiveness of this revision. And it is suggested that there be noneed to introduce a new justification defense in the PCSA owingto the following reasons:First, the justification defense clauses proposed in the billsrequire two factors: ‘truthfulness’ of the revealed facts and themotive of the disclosure for ‘public interest,’ which is the samejustification defense as the criminal libel in Article 310, the Criminal Act of Korea. However, the element of ‘truthfulness’ isnot suitable for the justification defense against ‘the disclosure ofillegally wiretapped communications and conversations,’ for thedisclosure could result in the breach of the communications secretsonly when the revealed facts are ‘true.’ And thus ‘false’ revelationsthereof shall not be applied by this provision but be treated ascriminal libel. Second, the justification defense should contain the considerationof the conflicting interests, such as freedom of speech and theprotection of communications privacy. But the current bills onPCSA unfortunately fail to maintain the balance between thoseinterests and are likely to jeopardize the communications secrets. Third, the current provision of the social providence, Article 20, theCriminal Act and the Supreme Court’s holdings thereon could givemore sufficient rules than the bills.