판례에 나타난 현실적 악의론의 한국적 수용

• 발행기관: 세계헌법학회 한국학회
• 저자명: 신평(Shin Pyung)
• 간행물 정보: 『세계헌법연구』세계헌법연구 제10호, 145~170쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.12.01

영문 초록

According to Korean Constitutional Law Article 21, clause 1 freedom of expression is stated. Furthermore the same Article, Clause 4 states, "Speech and press shall not undermine the honor or right of others, public moral and social ethic." But I think this doesn't mean so much that the limit to freedom of expression definitely exists as that it should function smoothly so as to work as a basis of a democratic society. The current Korean movement of democratization emphasizes the right of individual and the power always tends to tame the speech. Under the circumstance of this Korean society the freedom of speech and expression is being threatened on several points. The existing Korean theory on defamation did not care much about basic value in a democratic society such as freedom of speech and expression in comparison with the fame of individual. Thus constitutionally reviewed defamation law is very important topic to discuss. In the U. S., theory of defamation was firstly reconstructed on the constitutional ground by New York Times v. Sullivan in 1964. It's the beginning of constitutional law of defamation. The constitutional law of defamation has been gradually completed by the following verdict in the Supreme Court and other courts. We may learn greatly by reviewing the American constitutional law of defamation. We may accommodate the theory of 'actual malice' which is one of the core of constitutional law of defamation in the U. S. The decision of Constitutional Court of Korea on June 24, 1999, seemed to partly adopt the theory of 'actual malice' evidently. And the Supreme Court in Korea recently fell in with this view of Constitutional Court of Korea. The direction of development of cases on this point is very noticeable. But Korean cases are accommodating the theory of 'actual malice' transformed in Korean style. In the future we could expect a fulfilling contents of Korean style 'actual malice' formed by continuing cases.

목차

1. 서설

2. 미국에서의 현실적 악의이론

3. 한국에서의 수용

4. 결어

ABSTRACT