노회찬 전 의원 ‘X파일’사건 제1심 판결의 문제점 -서울중앙지법 2009. 2. 9 선고, 2007고단2378 판결과 통신비밀보호법 제16조 제1항 제2호의 해석을 중심으로 -

Abstract

This paper analyzes the Seoul Central District Court’s Decision 2007 GoDan 2378 delivered on February 9, 2009, which convicted the former Representative of Democratic Labor Party, Roh Hoe-chan. The decision is related with so-called ‘X File Scandal’ of Korea in 2005. During the National Assembly interpellation session, Roh urged the then Minister of Justice to investigate this scandal. The day before, he made a press release which was based on transcripts and media reports of illegally wiretapped conversations, and posted it to his own web-site on the same day. From the analysis of this decision were drawn the following conclusions: First, although the X-file was created through the illegal wiretapping of private communications by the Agency for National Security Planning[NSP, the Predecesssor of the National Intelligence Service(NIS)], the accused did not commit any violations against the privacy of the concerned by disclosing the contents of the X-file: once it becomes part of the public information or common knowledge, subsequent disclosure does not fall within the purview of Article 16 Paragraph 1 No. 2 of the Protection of Communications Secrets Act of Korea, prohibiting the disclosure of illegally obtained communications and conversations. Thus, the accused’s acts could not be punished under this clause. Second, if an act were to be a criminal libel on account of false statement[Article 307 Paragraph 2 of the Korean Criminal Code(KCC)], the facts concerned should be objectively false (actus reus) and the offender should know they are false (mens rea). In this decision, it was not proven that the facts were false. Therefore, the acts in question do not constitute the criminal libel on account of false statement. Third, the exemption of criminal liability for criminal libel (Article 310 KCC) requires that the statement should be made ‘only in public interest’ and the stated fact should be ‘true’. In this case such requirements were fulfilled. Moreover, the accused’s acts did not violate ‘normal social norm’, a general criterion for the exemption of criminal liability(Article 20 KCC) in Korea.