명예훼손과 원상회복: 사죄광고를 중심으로

• 영문명: Defamation and the Specific Restitution
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 윤철홍
• 간행물 정보: 『비교사법』비교사법 제10권 3호, 25~55쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.09.01

영문 초록

Korean Civil Code provides money damages as a usual remedy of tort. In Case of defamation, however, Art. 764 of Korean Civil Code recognizes an exception by providing as follows: Court may order the defendant having caused harm to the reputation of the plaintiff to take appropriate measures to restore the harmed reputation of the plaintiff. Examples of the appropriate measures are publication of retraction, publication of the judgement of the case, publication of correction, response right of the plaintiff, injunction of publication and publication of apology. Among these, publication of apology has been widely adopted. Publication of apology has been ordered in case of intentional or negligent defamation, and money damages was not a proper remedy. The Constitutional Court of Korea, however. has found that ordering for publication of apology was unconstitutional since the forced apology was in conflict with the freedom of conscience. The decision of the Constitutional Court of Korea, in my opinion, is wrong and should be changed. In addition to the circumstances where publication of apology was ordered, the order to publication of apology seems to be a good chance for Mass-Media to re-acknowledge their social responsibility and consequently Mass Media will perform their duty faithfully. Anyway, the Constitutional Court of Korea proposed publication of retraction in place of publication of apology. Till now. there has not been any detailed study on the legal character, requirements, and the procedure of the claim for publication of retraction. In broad sense publication of retraction may be included in publication of correction and seems to be in line with a claim to "retract all the report published" recognized under German legal system. In addition, German court has ordered, in several cases, that a part of report shall be retracted, which, in my opinion, would be a good model in Korean Courts' ordering publication of correction. Therefore, more study to import the German system into Korean legal System seems to be needed, After defamation remedies such as publication of correction and response right of the plaintiff, in many cases, are unsatisfactory, though important. In contrast, injunction of publication as a preventive remedy, is the most effective relief to defamation. But wide recognition of injunction will be a severe restriction on freedom of press. Therefore, in order to harmonize the freedom of press and the right to preserve one's reputation, it is necessary to clarify the requirements for the injunction and to apply them strictly. In legal policy perspective, it is recommended that the Courts and the Constitutional Court of Korea should take progressive attitude in taking proper measures of restoring the harmed reputation. For example, in case of defamation of socially weak person, the Court should be active in ordering publication of retraction or publication of correction. In case of continuing defamation, the Court should be active in making an order of injunction and publication of the judgement of the case. Through this active attitude, the Court of justice will perform their duty as an ultimate authority to relive defamation by Mass-Media.

목차

1. 서설

2. 명예회복의 적당한 처분의 유형과 그 내용의 개관

3. 명예회복 처분으로서 사죄광고

4. 결어

참고문헌

ABSTRACT