‘혐오표현’의 규제에 관한 비판적 성찰

During the process of proposal and withdrawal for Hate Speech Regulation Act in 2018, the legislative attempt to legally regulate hate expressions against “minorities” has caused social and political conflicts in Korean society. Although a social conflict is natural in a liberal tradition, the conflicts are often exploited for political gain as participatory interests and factional logic in Korean society where the liberalism is short in history. It is also a threat to democracy as it develops in a totalitarian direction through compulsive group thinking about a heterogeneous society that seeks to exterminate the other side. Regulating hate speech in proportion to the democracy development in politics and morality has turned out to be a paradox that would alienate the minority who are thought to be victims. It could be an obstacle to self-realization in terms of the struggle for recognition. In addition, it also pointed out the theoretical and practical problems which insists on a broad guarantee of freedom of speech that opposes limitations such as ‘excluding abusive language’ while simultaneously insisting the hate speech must be regulated because the rules of “free market of ideas” are set from the stronger political side. Through the process of analyzing these problems on the ground of legal theory, the regulation of hate speech could cause the contrary from the notion, which the freedom of speech has its superiority in balancing, when the case of regulation of freedom of speech is established as an unconstitutional legal examination standard by the Constitutional Court of Korea. The issue of hate speech can be improved through readjustment of existing regulations and order of norms so that the victims can receive more systematical relief. Thus, it would be more necessary to strengthen the participatory capacity of the minority and promote the public debate in politics and moral for the development of democracy rather than further regulation.