사실 적시 명예훼손죄와 표현의 자유

A Study on Criminal Defamation and Freedom of Expression: focusing on Constitutional Court Decision 2017hun-ma1113 (Feb 25, 2021)

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.