판례에 나타난, 명예훼손 소송에 있어서의 의견과 사실의 이분론

The Dichotomy of Opinion and Fact in Defamation Litigation represented by Cases

In the U. S., traditional theory of defamation was firstly reconstructed on the constitutional ground by New York Times v. Sullivan in 1964. It's the beginning of constitutional law of defamation. The constitutional law of defamation has been gradually established by the following verdict in the Supreme Court and other courts. We may learn greatly by reviewing the American constitutional law of defamation. Because the new American theory attaches much importance to the freedom of press and expression and we think the protection of free press and expression is strongly needed in present Korean circumstances. It is the time to adapt the American theory to Korean society as long as it is not inconsistent to the Korean positive law order. When we will adapt the theory of a constitutional law of defamation to Korea, the first thing to do is to accommodate properly the dichotomy of opinion and fact which is one of the cores in the theory of constitutional law of defamation. In America they usually call 'opinion rule'. It has the meaning that the constitutional protection should be given to the expression of opinions. While there are many defects in the dichotomy of opinion and fact, we need to rely on this theory to extend the freedom of expression. Fortunately the Korean Supreme Court in Korea began to deliver verdict based on the dichotomy of opinion and fact. But it embarrasses us when we find the difference between the original American dichotomy of opinion and fact and that represented by Korean cases. Maybe Korean theory is less protective for the freedom expression than American theory. But we don't know the accurate standpoint of Korean Supreme Court to this problem. Hereafter the Korean Supreme Court have to express whether Korean dichotomy of opinion and fact rearly has a different meaning compared with that of American theory, if it's true, why the Korean Supreme Court attempted such a transformation of the theory. We are sincerely looking forward to the clear explanation in those points by the Korean Supreme Court.