명예훼손과 온라인서비스제공자의 형사책임

• 영문명: The Criminal Responsibility of On-line Service Provider(OSP) about Defamation
• 발행기관: 한국형사정책학회
• 저자명: 오경식(Oh, Kyung Sik) 황태정(Hwang, Tae Jeong) 이정훈(Lee, Jung Hoon)
• 간행물 정보: 『형사정책』刑事政策 第22卷 第1號, 259~292쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

Considering great social influence of Internet and other information and communication networks these days, On-line Service Provider(OSP) should be responsible for illegal activities regarding its information and communication service when it does not take proper actions against the illegal activities despite acknowledgement. This paper examined OSP's civil liability and criminal liability from point of view of the Criminal Act. As a result, OSP's criminal liability shall be limited to ‘aiding and abetting by omission’ only when OSP's access and control against illegal contents are objectively admitted. Despite aforementioned legal theory, OSP's criminal responsibility of others' defamation on information and communication networks shall be prudently admitted. This is because OSP's admission of criminal responsibility can reinforce regulations on OSP's information and communication services to give chilling effects and to be likely to weakenfreedom of expression that is basic rights of the Constitution. Therefore, the obligation of caution can cognize infringement upon others' legal interests caused by posts of evident illegality, and it should be limitedly admitted within specific scope that can be controlled. Defamation not only being illegal activities of the Civil Law but also being crimes of the Criminal Law have a lot of common factors, and conditions of criminal responsibility are stricter than the ones of civil responsibility are: Considering such a fact, when OSP's criminal responsibility based on others' defamation on Internet is decided, conditions of civil responsibility that have been recently suggested by civil judgment (2008DA53812) shall be minimum conditions that can admit of criminal responsibility.

목차

Ⅰ. 들어가며

Ⅱ. OSP 형사책임의 법이론적 기초

Ⅲ. OSP와 부작위범의 구성요건해당성

Ⅳ. 마치며 : OSP 형사책임의 정책방향

키워드

명예훼손 온라인서비스제공자 정보통신서비스제공자 부작위 방조 Defamation On-line Service Provider Omission Aiding and Abetting