취재의 자유와 그 한계 - 정보 취득의 위법성 심사를 중심으로

• 영문명: Freedom of Access to Information and Its Limitation
• 발행기관: 한국헌법학회
• 저자명: 문재완(Moon Jaewan)
• 간행물 정보: 『헌법학연구』憲法學硏究 第13卷 第3號(第1冊), 391~424쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  In this paper I maintain that the right to access to information is not within the ambit of the right to free speech. On the contrary, most Constitutional scholars in Korea argue that the freedom of speech should be regarded not as an isolated right, but as a whole process of flowing information, which means that the right to access to information along with the right to know is as important as the right to speak in a democratic society.
  The major difference between the popular view of Constitutional scholars and mine lies in whether breaking the law for the purpose of gathering news is protected under the name of the right to free speech. Even scholars, holding the view that the right to access to information is a Constitutional right within the right to free speech, agree that you cannot break the law, which is generally applicable to all, without being punished. However, in my opinion, logical conclusions from proposing the Constitutional right to newsgathering are that you may break the law so long as you are to gather information for the sake of expressing something in public and that your legal status will depend upon how the balance between two Constitutional rights, namely, your right to free speech and the infringed person"s right such as property right or privacy right tilts. I believe that those conclusions make no sense. Property right owners or pri vacy right owners should be kept secure against law breakers.
  I"m of an opinion that balancing of two rights is not necessary. My idea is to take the right to access to information away from the right to free speech, which means that you may break the law to gather news with your responsibility. Judges may consider the purpose of breaking the law, not in the stage of finding guilty, but in the stage of choosing penalties.

목차

Ⅰ. 문제의 제기
Ⅱ. 언론의 자유와 취재의 자유
Ⅲ. 위법하게 취득한 정보의 보도로 인한 민ㆍ형사상 책임
Ⅳ. 맺는 말
〈Abstract〉

키워드

표현의 자유 정보의 자유 취재의 자유 사생활의 비밀과 자유 통신비밀보호법 위법하게 취득한 정보 불법행위 위법성 조각 freedom of expression access to information newsgathering privacy torts Bartnicki v. Vopper