[판례평석] 국가 또는 지방자치단체가 명예에 관한 죄의 피해자가 될 수 있는지 - 대상판결: 대법원ﾠ2016. 12. 27.ﾠ선고ﾠ2014도15290ﾠ판결 -

Freedom of expression in democratic societies is an indispensable means of realizing self-governance―a social value that participates in political decision-making through methods such as public criticism of government policy. It is an issue then that a broader freedom of expression should be recognized for public affairs, such as the policies that the national or local government establishes and enforces for the self-governing functions of freedom of expression to function properly. In the case of the Republic of Korea, the extent to which freedom of expression is guaranteed has been greatly expanded. This is due to various factors, such as the development of democracy and the establishment of a favorable judgment on the freedom of expression, and these developments have given people the ability to criticize public matters more openly. In some cases, however, the national or local government has filed suits for civil damages against individuals or media organizations that have criticized public policies or accused them of defamation. Civil lawsuits or prosecutions such as these have negatively affected the freedom of expression. It has been questioned whether the national or local government can be a victim of defamation in the case of a civil damages claim; the different courts handling those cases came to different conclusions. However, the recent ruling of the Supreme Court of the Republic of Korea has great value as the first case declaring that the national or municipal government cannot be a victim of defamation or insult through clear arguments in cases of libel. In the analysis, there are three grounds for the judgment; this case review tries to analyze the judgment from three aspects: (1) infringed legal interest, (2) subjectivity of basic rights, and (3) profits of moral rights and freedom of expression. First, the interests of individuals protected by law, including honor, is a thing that neither the national nor local governments can enjoy. This is because the personality rights are fundamental rights derived from the dignity, value, and the pursuit of happiness of individual human beings as defined in Article 10 of the Constitution of the Republic of Korea. Also, in criminal law, a crime against honor is one of the provisions to protect personal interests, not national or social interests. Second, the national and local governments cannot be the subjects of fundamental rights, because these entities serve as a representative of fundamental rights bound by the effects of basic rights. Of course, some public organizations, including national and local governments, can enjoy select basic rights such as academic freedom. However, due to the nature of personality rights, such an entity cannot enjoy the full range of rights. Third, apart from the fact that personality rights cannot apply to the national and local governments, it is the heart of democracy that the policy decision and the policy execution should always be subject to public scrutiny and criticism. To adapt and implement these decisions and policies properly, freedom of expression should be guaranteed to be extensive. In the light of the principle of proportionality, the freedom of criticism against the national or local governments is more important than the public interest in the function of these entities. Based on these three arguments, it can be reasonably concluded that the national or local governments cannot be considered a victim of defamation or insult.