허위사실유포 관련 범죄에 대한 고찰

As false information spreading via SNSs causes social problems, many support a view that a new law should be enacted to regulate the spread of false information. Such a demand for the establishment of the law began with the Constitutional Court’s decision that ruled article 47, section 1 of the framework act on telecommunications unconstitutional. But the legal issues associated with the spread of false information are not limited to discussions on new introduction of legal provisions on the spread of false information. Various legal issues can be raised as Korean laws have so many rules related to the spread of false information. Therefore, this article looked into problems of defamation in criminal law, the reversal of the burden of proof in public official election act and the new legislation to regulate the spread of false information. Consequently, in the special situation like war, spreading false information via SNSs must be regulated by strong penalties, but we don't need to legislate against the spread of false information in a normal situation, because we can quickly examine the false information posted on SNSs and react reasonably. In addition, investigators practically apply article 307, section 2 of the criminal law to cases where the information spread through SNSs is not proven to be false. But, according to the structure of the criminal law, article 307, section 1(spreading fact) of the criminal law must be applied in the above situation, not article 307, section 2(spreading false information). It is due to the unique structure of defamation in our criminal law. And Korean court made certain that the burden of proof was placed on the prosecution in the judgment related to article 250, section 2 of public official election act. However, they reversed the burden of proof which was sharply criticized by many scholars of criminal law.