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A study on the unconstitutionality of factual defamation

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(2), pp.171-19
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : May 3, 2024
  • Accepted : May 22, 2024
  • Published : May 31, 2024

Cho, Dong Sup 1,  KIM, IL HWAN 1

1성균관대학교

Accredited

ABSTRACT

In its decision on Heonma 1113･2018 Heonba 330 (merger), the Constitutional Court ruled that the protection of honor is more important than the act of expression due to the importance of ‘outward honor’ and the ‘special nature of our society that values ​​face.’ led to a decision However, the Constitutional Court's decision is a judicial decision that does not violate the minimum fundamental right to expression, and is different from the general legal awareness that our people have. In addition, according to the principle of constitutional interpretation of the law, which is a basic principle in our constitutional litigation, if issues related to defamation are neglected when facts are stated, there may be cases where the protection of the people's rights is not faithfully protected. Therefore, this provision should be discussed in the legislature for revision or abolition in terms of basic rights protection or criminal policy. What the constitutionality and unconstitutionality of the crime of defamation by stating facts have in common is that sanctions are necessary for cases where the intimate secrets of private life are violated due to the disclosure of true facts. However, while the abolitionist's position is to abolish Article 307, Paragraph 1 of the Criminal Act but create a new component, the preservationist's position is to revise and supplement it.In this paper, in considering the crime of defamation based on facts, we will look at the Constitutional Court of 2017 Heonma 1113 and 2018 Heonba 330 (merged) and examine the current status of domestic and foreign laws related to this. In relation to the current regulations, as an improvement plan, consideration should be given to giving priority consideration to matters that are explicitly defined as grounds for illegality, at least as far as criminal victims or victims of human rights violations revealing their victimization. In comparative legal review, in particular, as in German legislation, the reasons for the illegality of defamation acts are subdivided, and the current facts are stated by introducing measures to shift the burden of proof to the investigative agency by including truthfulness in the constituent requirements. The crime of defamation should be revised or abolished and the basic rights of citizens should be guaranteed more broadly.

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