증오범죄와 표현의 자유 -표현의 자유 위축효과와 헌법적 정당성을 중심으로-

Hate speech is the expression that arouses hatred and discrimination based on race, religion, gender and sexual orientation. The hate speech excludes minorities from society. Also, it becomes a gateway to hate crime, which advances to violence or substantial discrimination without being limited only to expression. Even our country is in the real situation of having no just accurate statistics aside from legal countermeasures against hate expression and hate crime. Also, there are few judicial precedents as well that addressed the hate speech as an issue. Because there is no punishment law pertinent to hate expression, the hatred and hate cannot be penalized or taken into account the punishment. There is just penality or competition caused by defamation or insult. Even in our country, the argument is being raised recently as saying that the hate speech and the hate crime should be punished or regulated administratively at least. Still, There is room for review even on whether or not punishing severely just for a reason that hate and discrimination correspond to a motive of crime. It includes whether or not being appropriate to impose aggravated punishment if aversion is caused by ignorance or prejudice, and how it will be restricted given belonging to the protection scope for freedom of speech in light of the constitutional law even if being the hate speech. Given setting limit, even a question about the chilling effect on freedom of expression is raised. Even if being the freedom of expression, the post-regulation is possible for the public interest unlike the pre-censorship prohibited in principle. That is because even the freedom of expression is not unlimited. On the other hand, the effect of pre-censorship can also occur even though being post-regulation for protecting the public interest. Even in the Supreme Court of the United States that absolutely guarantees freedom of expression, the appearance of unconstitutional status at the moment that the government power judges the contents of expression is always becoming an issue apart from the right or the wrong of expression. The hate speech and the hate crime against social minorities require legal sanction. But everything cannot be solved by punishment. A social alternative plan needs to be preceded that is available for transferring consideration and tolerance to social minorities before the country enforces the system of restricting hate speech.