명예훼손죄의 공연성 구성요건에 관한 비판적 고찰 ― 대법원 판례를 중심으로 ―

초록

In Korea's criminal code, Article 307(Defamation) stipulates that (1) a person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two year years or by a fine not exceeding five million won. (2) A person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualification for not more than ten years, or a fine not exceeding ten million won. Article 308(Defamation of Dead Person) stipulates that a person who defames a dead person by publicly alleging false facts shall be punished by imprisonment without prison labor for not more than two years or by a fine not exceeding five million won. Article 309(Defamation through printed materials) stipulates that (1) A person who commits the crime Article 307(1), by means of newspaper, magazine, radio, or other publications with intent to defame another, shall be punished by imprisonment or imprisonment without prison labor for not more than three years or by a fine not exceeding seven million won. (2) A person who commits the crime of Article 307(2), by means described in paragraph (1), shall be punished by imprisonment for not more than seven years or suspension of qualifications for not more than ten years, or a fine not exceeding fifteen million won. As the Supreme Court upheld, there might be possibility of resulting in disregarding the legal elements of 'open and notorious' statements despite its structural differences, not only if the possibility of transmitting to unspecified individuals or unknown number of individuals arose, but if the legal elements of 'open and notorious' statements are recognized based on the situations where unspecified individuals or unknown number of individuals came to recognize as a majority opinion asserts. Inconsistency may be brought up to a wrong interpretation for statements made only before one individual in case of the unknown number of individuals because the legal elements of 'open and notorious' statements apply to unspecified individuals or unknown number of individuals. Unlike American defamation law, Korean defamation law tends to criminalize a defendant if they either made statements of facts or his statements satisfies the legal element of 'open and notorious' in his statements. Therefore, the legal element of 'open and notorious' statements must be literally interpreted as a situation where at least unknown number of persons may be recognized except for a situation where a defendant made his statement to either one person or number of persons. The legal elements of 'open and notorious' statements in the defamation law were designed to criminalize a defendant if he has intended to defame a plaintiff to the public. Under these circumstances, the legal element of 'open and notorious' statements may include a situation where a defendant made his statement to either unspecified individuals or identified number of individuals in case of the unknown numbers of persons. Looking into the doctrine about standards of the legal elements of 'open and notorious' statements in the defamation law, majority opinion asserts that it subsumes a situation where either unspecified individuals or identified number of individuals may be recognized. Therefore, personal communications or exchanges of information are excluded from these legal elements of 'open and notorious' statements. The unspecified number of individuals does not mean the identified group of persons. The theory is that it must satisfy the unknown numbers of person, not just over 2 persons. But the supreme court's case requires a category of over 10 persons, not 2-3 persons or 6-7 persons. Majority opinion and court decisions taking sides on the legal requirement for the unknown number of persons do not discern a small or large number of persons. But for a situation in which the unspecified number of persons may be recognized, the majority opinion and court decisions differ in its position. This study focused mainly on each and every supreme court decision that have been stored in the Supreme Court of Korea's data base and authorized to the public from 1966 to 2010. The variables affecting the element of 'open and notorious statements have been drawn based on each supreme court decision and coded into computer by using the Statistical Package for the Social Sciences 21 version. The methods of analyses include frequency distribution, cross-tabulation analyses and regression analyses. Statistically significant results were properly reflected on this study. This study is to confirm the supreme court's decisions on the applications of facts to the defamation law based on general circumstances affecting the criminal libel. Because each and every element of criminal libel is the very requirement of criminalizing a defendant, how to affect the decisions based on variable conditions significantly depends on the results of the supreme courts. The regression analysis contributed to confirming the consistency that the supreme court continued to maintain its legal position. It may be additionally corroborated that the 'theory of transmission' adopted thus far by the supreme court must coincide with the regression analysis in this study. The distance from the standard may be statistically interpreted as some discrepancies from fairness, objectivity and consistency in ruling the decisions. Therefore, it is suffice to say that these discrepancies represent 'probable' unconstitutionality of the decisions made by the supreme court. Statistical analyses show that the 'theory of transmission' adopted by the supreme court is unconstitutional. The criminalization of defamation and slander has a global tendency to dissipate gradually. Korea also is no exceptions to consider positive legislation policy on this issue.

키워드