전략적 봉쇄소송 규제법에 대한 소고

A Study on the Anti-SLAPP Legislation

SLAPPs, as defined by Professors George W. Pring and Penelope Canan, have four distinct elements; these suits must: (1) involve a communication intended to influence government action that (2) results in a claim or counterclaim (3) filed against a nongovernment individual or organization (4) on a substantive issue of public interest or social significance. SLAPPs are specifically intended to stop and discourage citizens from exercising the rights protected by the petition clause of the First Amendment by saddling them with the burden and expense of handling a civil lawsuit. When a SLAPP is filed, it transforms the dispute between the target and the filers in three distinct ways. First, there is an issue transformation: the disagreement between the parties is transformed from a political issue to a judicial issue. Second, there is a forum transformation: the dispute is moved from the public arena to the private confines of a courtroom. The forum transformation is significant because the interactions between parties in a formal legal proceeding are governed by a different set of rules than interactions between parties in a public forum. The most notable effect of these suits is the chilling effect they have on political speech. Anti-SLAPP protections can try to prevent the filing of SLAPPs and provide methods for quick dismissal of SLAPPs. In 1989, Washington became the first state to pass an anti-SLAPP law. Since then, 29 states have enacted anti-SLAPP laws offering differing levels of protection for citizens speech and petition rights. Anti-SLAPP statutes offer varying degrees of protection for speech and petition rights through procedural hurdles that make it more difficult for a SLAPP filer to pursue its claims. The core provisions common to many of these statutes include the establishment of a process for motions to dismiss or strike claims targeting public participation, the expedited hearing of such motions and suspension or significant curtailment of discovery until the court rules on the motion, and a cost-shifting award of attorney s fees and costs payable by the filer to the target when the target prevails on its motion to dismiss. Korea is currently considering anti-SLAPP bill. Despite the differences in legal system, Korea s anti-SLAPP bill is expected to in protecting citizens who wish to participate in the governmental process, but fear full participation because of potential liability. Korea s legislature should therefore, after considering its alternatives and making necessary changes, continue to push the passage of anti-SLAPP legislation.