명예훼손죄에 있어 공연성의 개념 -대법원 2020.11.19. 선고 2020도5813 전원합의체 판결을 중심으로-

Supreme Court en banc Decision (2020 Do 5813) Interpreting defamation’s concept of publicity under the Propagation Theory as the majority’s opinion may lead to expanding the elements of crime and punishing beyond the extent regulated by the criminal law as it may be interpreted that any statements on a specific individual or minority are punishable when such statements involve the risks of propagation. Adoption of Propagation Theory shall be considered as analogical interpretation and extensive interpretation which are prohibited in ‘Principle of Legality’ of Criminal Law. This writer disagrees with the majority’s opinion insisting on Propagation Theory even if it is reasonable to strictly interpret ‘Publicity’ as the state where unspecified or majority are able to recognize directly. In recognition of the fact that the scope of punishment for defamation in the truth facts is unjustly expanded, majority’s opinion claims propagation to have high degree of possibility and probability instead of simple possibility to narrow down the extent of punishment in a reasonable way. Even though the publicity needs to be interpreted strictly, the Propagation Theory tries to expand the elements of crime first and restrict again later. This writer thinks that one of the reasons why South Korea is stigmatized as ‘The Country of Defamation Through True Facts” is the Supreme Court’s adoption of Propagation Theory. If there exist any controversies over whether the statement applies to defamation or not, the Supreme Court interprets publicity in a way that even a statement to a minor specific individual may apply to defamation when it involves the possibilities of getting spread to others. As a result, lawsuits are easily made on the statements that may apply to defamation. According to the statistics in 2019, total of 17,953 defamation cases have been reported and 1,717 cases have been indicted (indictment rate : 9.5%). Also, total of 85,699 defamation-related cases were reported with average of 234 cases reported in a day. Among the reported cases, only one out of the 10 cases is indicted. This shows that only some of the cases among indiscriminately reported lawsuits go through trial. Due to numerous defamation-related cases, the national investigation authority cannot be used on solving the important and necessary crimes and such authority is wasted on the dispute over pride between individuals. solve the issue of wasting the national investigation authority, it is necessary to interpret the defamation through true facts’ component, publicity, strictly and prevent the unnecessary accusation on the cases that are not punishable.