현실적 악의 기준의 현재: 한국과 미국 비교연구

The actual malice standard set forth in New York Times Co. v. Sullivan has been a bulwark for freedom of speech and freedom of the press in the United States. This standard has widely been expanded to election law and labor law. It took a deep root in American society. Korean courts have consistently declined to accept it even though Korean defamation law is significantly more restrictive than the U.S. law. Contrary to the U.S., in Korean jurisprudence the Sullivan test has long been a dormant legal principle. Some legal scholars asserted that courts do not need to adopt it because the reasonable belief standard of Korea is very similar to the actual malice standard. Some said that the Korean courts had applied the transformative actual malice rule which was adapted to Korean situation while a scholar argued that the American standard was practically adopted to a Korean defamation case by a District Court. The goals of this paper are 1) to compare how the Sullivan test is used in the U.S. and Korea 2) to analyze whether this test was really adopted to a Korean case and whether it was applied to the some cases in the Korean style.