판례를 통해서 본 명예훼손죄의 공연성의 의미와 판단기준에 관한 소고

A Study on the meaning of the publicity of defamation as seen through precedents and the criteria for judgment: Focusing on Supreme Court en banc Decision 2020Do5813 Decided November 19, 2020

The crime of defamation stipulates publicity as a constituting requirement. Accordingly, whether or not a crime of defamation is established is determined depending on whether or not publicity is recognized. The meaning of publicity is to be understood as “a state that is unspecified or recognizable by the majority”, which is consistent with the legislative purpose of the crime of defamation. In addition, it is reasonable to interpret the criterion for judgment of publicity as ‘a state in which unspecified or majority people do not need to recognize realistically, but at least can directly recognize it’, as in the majority theory. On the other hand, our case law has applied the propagation possibility theory as the basic legal principle of the Supreme Court case regarding the publicity of defamation crimes, despite the criticism of the academic world so far. Unlike previous precedents, the subject case has been conscious of the criticism of the academic world, and presented in detail the content of the law of propagation and the theoretical basis. It also makes it clear that the Supreme Court will maintain the propagation theory. Accordingly, the precedent is meaningful in that it is the first all-in-one decision to maintain the possibility of spreading. However, as a result of reviewing the main arguments presented by the Supreme Court, various problems arise when applying the propagation possibility theory as a criterion for judging publicity to defamation charges. Therefore, I think it is necessary to change the forward-looking attitude of the Supreme Court so that the harmonization of the honor and expression of individuals for the legislative purpose of defamation crimes. Currently, some amendments to the Criminal Law on defamation crimes due to factual time are being referred to the Legal Affairs and Judicial Council. At the moment, it is not possible to predict in which direction the above bill will be legislated, but at least I expect it to be legislated in a direction that meets the legislative purpose of defamation charges.