허위사실적시에 의한 명예훼손죄의 적용에서 전제사실의 미확정으로 인한 문제점 고찰

• 영문명: A StudyontheProblemsofaunsettledFactinthe DefamationbyPubliclyAllegingFalseFacts
• 발행기관: 한국형사판례연구회
• 저자명: 이원상(Lee, Won Sang)
• 간행물 정보: 『형사판례연구』형사판례연구 제22권, 105~137쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.06.30

영문 초록

Anyone who defames another by publicly alleging facts can be punished, even though the facts are true. Because In korean criminal law there are the article, A person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won(Art. 307 (1)) . Furthermore, A person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a fine not exceeding ten million won(Art. 307 (2)) . But If the facts alleged under Article 307 (1) are true and solely for the public interest, the act shall not be punishable(Art. 310). However, there is no rule about the unsettled facts(It s not sure whether the publicly alleging facts is true or false). In practice, this cases are applied to Art. 307 (2). And the practice deal with the unsettled facts in the field of a mistake of face. But in Art. 307 (2) the fale facts is a element of a crime, so that the unsettled facts should be applied not to Art. 307 (2), but Art. 307 (1). Otherwise, the unsettled facts can make misunderstand to the public by the guilty or not guilty of a judge. Because if the judge found the defendant guilty, then the unsetlled fact turn to be a true fact in spite of not proving of the fact. But if the judge found the defendant not guilty, then the unsettled fact turn to be a false fact. Therefore, if a judge can not prove the truth of the unsettled fact, then the Art. 307 (1) must be applied.

목차

I. 대상판례

II. 문제제기

III. 형법상 명예에 관한 죄의 이해

IV. 사안풀이

V. 결론

키워드

명예훼손죄 사실적시에 의한 명예훼손죄 허위사실적시에 의한 명예훼손죄 모욕죄 위법성조각사유 defamation defamation by publicly alleging facts defamation by publicly false facts insult justification