국제인권법상 표현의 자유 및 대한민국 법제의 평가

Freedom of expression, though universally accepted, is highly disputed in its application to concrete cases. It is an explicit norm in the Korean Constitution but also a norm under the UN International Covenant on Civil and Political Rights to which Korea is a party. The Korean courts in particular have followed monism, thereby opening the way for international norms to be domestically applicable. Therefore, the documents of the UN Human Rights Committee, the UN Human Rights Council appointed Special Rapporteur on Freedom of Expression, and other entities interpreting and applying similar international norms provide relevant guidelines to how freedom of expression should be interpreted and applied to Korea’s domestic settings. Also, the explicit human rights practices of countries also form the ‘state practice’, another importance source of international law, for countries are usually silent about their abuses but forthcoming about their advances in human rights area. From an analysis of these documents, we can derive such basic principles such as “clear and present danger”, void-for-vagueness, the ban on prior censorship, the ban on viewpoint discrimination, which we previously found limitedly effective only in the U.S. but are actually relevant also in the deliberations of UN bodies and regional human rights bodies. Intertwined with these principles, the decriminalization of defamation, the truth defense to defamation, the ban on regulation on emotions and opinions, the ban on administrative censorship, even if not prior, etc., have also evolved to become part of the concrete international human rights standard. Against this standard, Korean law fails in several respects: the world’s most active imprisonment sentencing for defamation, the world’s almost sole enforcement of truth defamation law, the world’s sole prosecutor-enforced general insult law, the world’s sole administrative censorship scheme on internet, the world’s sole legal scheme criminalizing workers’ and consumers’ boycott, etc.