사이버 모욕죄관련 개정 법률안의 위헌성 연구

Grand National Party promotes the new establishment of cyber contempt with a view to punishing offenders for any virtual defamatory action on the web. Pro-penalty group argues that it is necessary to newly establish cyber contempt for the purpose of producing sound public opinions, whereas counter-penalty group argues that such a new establishment of cyber contempt may fundamentally violate the ‘freedom of expression’ as a constitutional basic right and may be likely abused even for any political purpose. Thus, this study intends to find out potential unconstitutionality of cyber contempt that will be subject to revision into ‘offense subject to complaint's intention’ as promoted by Grand National Party; basic right like freedom of expression is the key right of liberal democratic constitution, and is also essential for sustaining human respect and value, pursuing happiness and realizing popular sovereignty. Based on relevant judicial precedents, this study examined potential unconstitutionality of cyber contempt to find out how it restricts or violates the constitutional freedom of expression. As a result, this study could come to the following conclusions: First, it was found that cyber contempt is contrary to ‘clear and present danger test’, because conventional order-driven regulations over virtual expressions on the web may cause a big barrier against the freedom of expression from its development. Secondly, contemptuous expression itself is a subjective emotion of victim, so it is not clear-cut to see which expression may mean contempt and it is not certain to know that desired expression one wants to make is subject to regulation. Ultimately, cyber contempt may violate freedom of expression that is assured by the Constitution of Korea. Thirdly, the impending cyber contempt permits arbitrary judgment of investigatory institution with offense subject to complaint's intention and causes higher potential to abuse investigatory right in violation of ‘less restrictive alternative test.’ Fourthly, unreasonable regulation over any expression on the web without any certain evidence of its evil effect produces more losses rather than benefits, ultimately violating ‘balancing test.’ Summing up, it is expected that cyber contempt, even if it is newly enacted, will cause a series of controversies around the society and will inevitably face confusions like legal action for unconstitutionality of cyber contempt. Hence, it is necessary to take sufficient time to try to make social discussions and consensus, rather than hastily enact such legal provisions on cyber contempt.