명예훼손법상 명예‧평판 개념과 그 시사점

The concept of “reputation” under defamation law is difficult to define, as the concept has multiple meanings. That is, the concept of one’s “reputation” may possess personal, social, and modern elements as well as traditional elements while also including aspects of rationality, irrationality, positivity and negativity. Robert Post tried to elucidate the meaning of reputation by breaking the concept into three sub-components: honor, property, dignity. To summarize his arguments, honor was the predominate focus during the pre-modern era when honor was associated with an individual’s social status or position. However, beginning in the nineteenth century, the concept of reputation as a form of property gradually emerged in conjunction with the rise of the egalitarian market economy. This greater emphasis on reputation being a form of property also demonstrates that utilitarian ideas based on cost-benefit analysis had penetrated the defamation law. Finally, with the advent of democracy and human rights protection, the notion of reputation as dignity emerged. In doing so, the concept of reputation sought to recognize the equal standing of all citizens in the community by recognizing the right for even the socially underprivileged and minority to demand at least the minimal level of respect. Although Post’s analysis may not be fully explain the concept of reputation under defamation law, it provides important insight for understanding defamation law. Finally, this article seeks to analyze the concept of reputation as it is applied by the Korean courts. My conclusion is that, as opposed to being a factual concept explicitly stated by Korean Supreme Court precedents, the actual use and application of the concept adapted through the adjudications of defamation law in the Korean courts tend to be highly abstract and normative and more closely the concept as a form of dignity, rather than honor or property. As a result thereof, this article also concludes that there has been a both over-protection and under-protection of reputation at the same time in Korea.