한국과 미국의 공적 관심사안의 비교

The Constitutional Court of Korea noted that “there should be distinction between matters of public concern and of private concern with regard to a judicial scrutiny.” The Supreme Court of Korea also decided in a defamation case that “the statement should be examined whether it objectively contributed to forming a public opinion or public debate as a subject of general interest and of social value to the citizens.” The reason why the highest Courts in Korea distinguish matters of public concern from of private concern and make distinctions between them is due to the fact that free debate on a matter of public concern is one of the indispensible conditions for democracy because it contributes to forming a public opinion. In America, a legal principle has been firmly rooted that a claimant in a defamation suit must prove that a defendant’s statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Recently, in particular, the U.S. Supreme Court in Snyder v. Phelps held that “[s]peech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Matters of public concern decided by the Supreme Court of Korea generally include government policy, criticism on an official conduct of government operation by a public employee, a misconduct of public employee, etc. On the contrary, the Korean Supreme Court decided that privacy is not a matter of public concern yet when it is unilaterally argued by a party without proving its truthfulness despite it was about a public figure. Then, in the NSP X-File case, the Supreme Court of Korea held that the conspiracies between public figures to give a huge amount of illegal political contributions to the presidential candidates and Dduc-Kap (illegal sweetener) to high-ranking prosecutors were not an unusual matter of public concern. In contrast, the U.S. Supreme Court in Bartnicki v. Vopper decided that the conversation between teachers regarding the negotiations over the proper level of compensation was a matter of public concern, and the conversation such as “blow[ing] off … front porches” was definitely a matter of unusual public concern. As such, a judgment of what is a matter of public concern is not always predictable as the U.S. Supreme Court and the Supreme Court of Korea respectively reached the different conclusions. Therefore, Korean courts need to make more concretely and actively clear what are matters of public concern.