사실 적시 명예훼손죄와 표현의 자유

• 영문명: A Study on Criminal Defamation and Freedom of Expression: focusing on Constitutional Court Decision 2017hun-ma1113 (Feb 25, 2021)
• 발행기관: 한국형사판례연구회
• 저자명: 승이도(Seung, Lee-Do)
• 간행물 정보: 『형사판례연구』제30권, 265~334쪽, 전체 70쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.06.30

영문 초록

1. It would be supreme, if we could not only allow statements on fact broadly in order to guarantee the freedom of expression and the right to know, but also protect external reputation and privacy sufficiently. However, it is almost impossible to incarnate such a condition in reality. If the Constitutional Court decides the Criminal Defamation(Criminal Act article 307 paragraph 1) unconstitutional, then the level of protection on individual’s external reputation and privacy will decrease. Though, if the Court decides the Criminal Defamation constitutional so as to increase protection on reputation and privacy, then the freedom of expression and the right to know will be restricted. 2. Korean Constitution article 21 paragraph 1 announces that all citizens shall enjoy freedom of expression. The paragraph 4 of the article stipulates that the freedom of expression shall not violate reputation of others in order to limit the freedom of expression. Even hough it stipulates that the claims for damage are allowed when the expression violates others’ reputation, it never mentions about criminal defamation. The reason why Sovereign people enacted the Constitution to protect the freedom of expression is that it is the foundation of our democracy. Exercising the freedom of expression on true fact is the premise of the right to know. It is the prerequisite of fulfilling our democracy that we can freely form our opinions through deliberation and discussion via true statement. Considering these grounds, Criminal Act article 307 paragraph 1 which stipulates the Criminal Defamation on true statement might be unconstitutional. Meanwhile, Korean Criminal Act article 310 stipulates that if the fact is true and the statement is solely for the public interest it shall not be punishable. Through this justification article, only the statement which is irrelevant to public interest and exposing others’ weakness as a private sanction is punishable. Such a statement can result in infringing personal right and privacy, without fulfilling the purpose of freedom of expression. In these regards, Criminal Defamation on true statement might be constitutional. 3. On Feb 25, 2021, the Constitutional Court of Korea made a first decision(2017hun-ma1113) that the Korean Criminal Act article 307 paragraph 1 is constitutional. But there was a strong Dissent Opinion which is supported by 4 Justices out of 9 Justices. In this decision, Justices wrote their thoughts and conclusions of various issues on Criminal Defamation and freedom of expression. The decision on Criminal Defamation carries significant meaning in deliberating a feasible solution for protecting reputation as well as expression.

목차

Ⅰ. 서설

Ⅱ. 대상결정의 내용

Ⅲ. 명예훼손죄에 관한 외국 입법연혁과 입법례

Ⅳ. 사실 적시 명예훼손의 처벌 이유와 최근 학계의 논의

Ⅴ. 형법 제307조 제1항에 관한 국회의 입법 논의

Ⅵ. 형법 제310조의 의미, 기능과 한계

Ⅶ. 청구인, 이해관계인, 참고인의 변론

Ⅷ. 대상결정의 법정의견과 반대의견

Ⅸ. 결어

키워드

헌법재판소 결정 2017헌마1113 명예훼손죄 위법성 조각사유 외적 명예 사생활의 비밀과 자유 표현의 자유 알 권리 형법 제307조 제1항 제310조 헌법 제21조 제1항 제4항. Korean Constitutional Court decision 2017hun-ma1113 criminal defamation on true statement justification external reputation privacy freedom of expression right to know Korean Criminal Act article 307 paragraph 1 article 310 Korean Constitution article 21 paragraph 1 4.