종교적 비판행위와 명예훼손죄의 성부 - 대법원 2009.4.23. 선고 2009도2057 판결 - = Religious Critique and Defamation

다국어 초록 (Multilingual Abstract)

Article 21 section 1 of the Constitution of Korea guarantees the freedom of speech and the press, while section 4 provides: “Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics. Should speech or the press violate the honor or rights of other persons, claims may be made for the damage resulting therefrom.” Article 37 section 2 also functions as a constraint, it says, “The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.
In this sense the freedom of speech and the protection of personal honor are sometimes at odds with each other. In Korea a person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won, regardless of the facts are true or false. If false, it can be a aggrevating factor(s. 307 Korean Criminal Code). Only where the facts alleged under §307 (1) are true and solely for the public interest, the act shall not be punishable, that is a special justification.
This paper explores the justification of defamation in the field of religious criticism, which is guaranteed by Article 20. In summary, even the right to religion and separation of the church and the state is stipulated in the constitution, the court must intervene where personal and secular honor is trespassed, while ecclesiastical debate enjoys comprehensive freedom.