국제인권기준에 비추어 본 우리나라 표현의 자유와 관련된 제도의 개선방향 : 국가보안법, 명예훼손 및 모욕을 중심으로

Abstract

The article aims to analyse whether the National Security Act in South Korea has been used to restrict freedom of expression under the justification for protecting national security. It also focuses on studying whether criminal defamation and insult has been abused or misused by the state to limit freedom of expression and if so, what will be a legislative alternative for the abuse.BR Major three arguments of the article are as below.BR First of all, restriction on freedom of expression on the ground of national security shall only be based on a clear and specific law so that arbitrary interpretation is not made. Based on international human rights standards, application of the law to legitimately restrict freedom of expression should be extremely careful so that it does not harm other public interests. Also, expressing opinion on historical facts should not be subject to restriction. However, the National Security Act is often arbitrarily and excessively applied in South Korea and it is even applied to restrict expressing opinions on historical fact. Therefore, the National Security Act should be abolished, as repeatedly recommended by various international human rights bodies.BR Secondly, regarding defamation charges, freedom of expression should not be restricted when opinion is expressed for public interest and based on facts. According to international human rights standards, even if it is based on false information, criticising public figure can be restricted only when obvious malice is found. However, in South Korea, one can be punished by law even when he/she expresses an opinion based on the fact. Even though defamation charges can be dropped when fact is uncovered for public interest, this exemption is very restrictively and untimely performed. Therefore, charging a person who uncovered fact with defamation should be abolished.BR Lastly, international human rights standards state that insulting a public figure should not be punished, especially when a public figure holds a political power. In line with this, insulting government bodies such as administrative bodies or military should not be subject to punishment. However in South Korea, criticising the Government is often punished for defamation. Therefore, defamation should also be abolished.