名譽毁損의 민사적 법률관계 -미국 不法行爲法을 중심으로-

Nowadays, all countries pursuing democracy ensure the securing of human dignity and freedom of speech and the press. These are counted as core values of government goals as constitution rights. The freedom of speech and the press means a freedom of expression in which people show their opinions, thoughts, and emotions without restriction. Criticism of others is also categorized under freedom of speech and the press. The Dignity of humans can’t be realized without protecting the reputation, a sort of personal right. Meanwhile, criticism of others is sometimes connected to defamation, when freedom of speech conflicts with reputation. In a case where excessive and immoderate expression results in defamation, the offender no doubt should be charged with a crime or compensation for damages. Concerns about compensation for damages in defamation cases began on a large scale from the early 1980’s in Korea. Defamation consists of torts, based on civil code article 750. But The above article prescribes only general requirements of torts, while more concrete requirements and privileged matters on defamation had not been standardized yet by case or legal theories. In the United States, defamation has been recognized as a sort of tort and the requirements of it had been decided in detail by courts. The legal theories that have been developed by the Federal Supreme Court to distinguish freedom of expression from defamation are detailed and subtle. The legal theories of defamation in America must have affected our legal ones considerably, so much that essential parts of decisions on defamation made by the Federal Supreme Court have been quoted by the Supreme Court or The Constitution Court in Korea. In this article, the requirements of defamation (injury to reputation, publication, plaintiff and defendant, false facts, opinions, etc,), privilege, and liability that were developed in common law and case law in America have been researched in depth. It is improper to accept fully the American theories of defamation in Korea because there are differences of legal systems and emotions toward the law between Korea and the USA, rooted from english-american law. We have only two clauses about defamation. One is civil code article 750, which provides the general requirements of torts. And the other is civil code article 751, which provides liability for defamation. Except for these, we have no clauses that provide specific requirements and privileges. So, to embody the requirements and privileges of defamation would make the parties to a suit get foreseeability, and then it leads legal stability and contributes to development of legal theories of defamation. In Korea, the requirements and exemption of illegality of defamation have been applied in civil law almost the same as in criminal law, so that if defamation were recognized I criminal law, the liability for defamation could be recognized. The case law in America, developing the legal theories about requirements, privileges, and liability of defamation in solving cases, included diverse and concrete facts, pursued the valance of constitutional value, the freedom of expression and securing personal rights, are expected to help resolve defamation troubles of civil suits in Korea. In addition, when we think over our judgements by courts that have been upheld, suggesting some abstract contents of the requirements and exemption of illegality, the detailed legal theories of defamation in America are expected to help resolve several legal problems concerning requirements and privileges in the future.