허위사실공표죄와 허위사실적시 명예훼손죄 해석의 문제점 - 조○○ 서울시교육감 항소심 판결을 중심으로 -

When holding a candidate criminally responsible for raising a suspicion against another candidate or a public figure in a the course of an election campaign, caution is required for determining whether the alleged facts are false or whether the defendant was aware of the falseness, for the purpose of protecting the freedom of speech and ensuring the effective verification of the qualifications of the candidates. Then it would be a violation of the presumption of innocence principle to have an individual prove the veracity of his/her remarks, or imposing on an individual the obligation to investigate or confirm the facts. Unlike the Japanese criminal law, falseness is one of the elements that constitute “publication of false facts” punishable under the Korean Public Official Election Act or “defamation by alleging false facts” under the Korean Criminal Act. This means that a prosecutor must prove the falseness of the facts put forward by the defendant in order to hold him/her responsible for the above crimes. Even if a prosecutor fails to prove that those facts are false, it does not necessarily mean that they are true facts, although it is likely that they are. In this case, publication of such facts may constitute a slander against a candidate under the Public Official Election Act or a defamation by alleging facts under the Criminal Act. Under the Korean legal system, however, the illegality of such slander or defamation is precluded if the facts are true, and they are alleged for a purpose related with public interests. In the case reviewed in this article, the appellate court held that the defendant had presented a strong evidence as to the ‘existence of a suspicion,’ and it falls on the prosecutor to prove the veracity of the existence. Then, the court concluded that the prosecutor failed to convince the judges that the allegation of the existence of suspicion is false, and therefore the allegation is either true or not false. This researcher finds the appellate court’s conclusion reasonable. However, this researcher finds the appellate court’s judgment unreasonable in that it followed the Supreme Court’s precedent and included both specific intent and wilful negligence as subjective elements that determine whether the defendant was aware of the falseness of the alleged facts. In addition, when determining whether a defendant intentionally committed any of the above crimes, the Supreme Court imposes on the defendant the obligation to confirm the facts, which is usually used to determine whether a defendant was aware of the illegality of his/her acts. The Court also merges the determination of the truthfulness of the alleged facts for the preclusion of illegality with the determination of the falseness of the facts as an constitutive element of the crimes. This practically transfers the burden of proof to the defendant. Using an element that precludes illegality to determine the intent of a defendant in such a way is predicated on an uncritical reception of a Japanese precedent, rendered under a legal system completely different from the Korean legal system. The Supreme Court’s approach is not reasonable in this regard, and the appellate court case above should be criticized for unquestioningly adopting the higher court’s precedent.