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Reconsideration on Abatement of Notice of Apology as Measures for Restoration of Honor

  • DONG-A LAW REVIEW
  • 2010, (49), pp.297-341
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

KIM MIN KYOU 1

1동아대학교

Accredited

ABSTRACT

A recent phenomenon of reinforcing personal rights has been so rapidly arising that it could be called the era of “personal rights prosperity.”Nevertheless, the number of cases requesting mediation or arbitration to Press Arbitration Commission due to the invasion of personal rights such as honor defamation or reputation defamation by mass media has been increasing dramatically lately. However, when there is a case like “honor defamation by mass media,” there is a collision between freedom of the press and personal rights of the victim. Focusing on the decision of Constitutional Court of Korea (CCOK) in 1991, this study re-examines the validity of the decision that abated the notice of apology, which has been conventionally used as one of the reasonable measures for restoration of honor that are provided in the article 764 of Korean Civil Code. The findings of the study are as follows. (1) According to the decision of CCOK in 1991, approving the notice of apology in civil responsibility is contradictory to the principle of civil liability which is focused on compensation because it also has criminal responsibility in it. However, Special Criminal Code has compensation order system, and the decision of compensation also puts stress on punishment function or deterrence function, which is similar to the punitive compensation system of the U.S. law. The final decisions judged by lower courts since "the decision of CCOK in 1991" specify the "function of satisfying" the victim as well; thus, civil liability also needs to consider not just compensation function but the function of punishment or deterrence against illegal acts as well that would be the fundamental function of torts liability. (2) “The decision of CCOK in 1991” claims that in honor defamation cases, the notice of apology had played a major role, while compensation was ancillary. However, there are not many judgments that permitted the notice of apology. Reviewing the cases before the year 1991, there were only a few cases that allowed only the notice of apology or referred to it along with compensation. On the contrary, “the notice of apology” can be a reasonable means of recovering the honor of the victim of a social devaluation because it allows the assailant to express his or her will to acknowledge their fault and to prevent the recurrence in the future. The problem is, however, that the assailants' personal rights should also be protected by law; thus, it would be important for the judiciary to make the best use of its system. (3) “The decision of CCOK in 1991” suggests three alternative methods to the notice of apology: ① publishing the court's decision of compensation on newspapers or magazines, ② publishing a conviction of honor defamation on newspapers or magazines, and ③ the withdrawal of a statement about honor defamation. However, if the publication of the ruling of compensation or of the ruling of conviction is ordered in the judgment, as suggested in the first and the second alternative methods,chances are that it will increase the emotional burden of the assailant, and therefore cause the compulsory realization of conscience or the invasion of personal rights of the assailant. In addition, since the withdrawal of statement about the honor defamation, which is suggested as the third alternative, is related with the pride of the press, it is feared that the press will be forced to a humiliating state. Since “the decision of CCOK in 1991,”there has been a tendency to consider broadcasting or publishing of the text of a decision. However, these methods are no different from the conventional method, a notice of apology. Thus, the assailant's expression of apology, which is a way of acknowledging his or her fault to the victim and of promising the prevention of recurrence in the future, would be more humane and persuasive because this method means the realization of self-responsibility as a member of community.

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