최근 판례를 통해 본 명예훼손죄의 쟁점과 시사점

Abstract

In recent years, since victims of sex crimes have been accused of defamation after they have sued the perpetrators, there is a high concern that the crime of defamation in fact reduces the victim of crime to a suspect. In particular, the Me Too movement, which emerged in Korea in early 2018, and the dispute over the revelation of past school violence involving celebrities and sportsmen have helped to amplify the debate over the existence of libel in fact. As a means of guaranteeing basic constitutional rights such as freedom of expression, freedom of speech, and people's right to know, decriminalization of de facto defamation is still actively being discussed. In the current situation related to the discussion on the existence of such factual defamation crimes, this paper first examines the legislative cases in foreign countries and the legislative discussions in Korea. Related to the recent decision of the Constitutional Court and the Supreme Court, this study examines the decriminalization of realistic defamation based on the last resort of the criminal law, the contraction of freedom of expression, the protection of false names, and the abuse of counter-accusations against victims of sexual violence. Then, this study presents a counterargument focusing on the necessity of criminal punishment, the lack of civil remedies, the reduction of punishment through Article 310 of the Criminal Act, the protection of victims, and the conversion to the crime of appeal, and attempts to maintain a critical viewpoint on the decriminalization claim of factual defamation.