언론사의 위법한 보도행위에 대한 징벌적 손해배상의 합헌성 검토

The purpose of this article is to examine the constitutionality of a bill that imposes punitive damages for illegal reporting by media companies, mainly reporting that infringes on personal rights. Punitive damages are a system that awards compensation for antisocial misconduct beyond actual loss. Punishment and deterrence are its main functions. The 20th National Assembly proposed amendments to the Media Arbitration Act and the Ministry of Justice proposed amendments to the Commercial Act, as punitive damages bills for media companies. Among them, the constitutionality of the revised Media Arbitration Act initiated by Congressman Chung Cheong-rae was reviewed. The clause to be judged violates the principle of clarity in that the meaning of words is unclear and a high degree of clarity should be required in the case of laws limiting freedom of expression. Since punitive damages cannot be said to be punishment, it does not violate the Double penalty support rule. Violation of Due process principles can also be a problem if excessive compensation is awarded. More importantly, punitive damages in cases of illegal reporting by media companies are in violation of Anti-overrestriction principle in that these are excessive restrictions on freedom of speech and press. As there is no consensus of the empirical study on the effect of punitive damages against infringement of moral rights, it is doubtful whether the provision subject to judgment is an appropriate mean. In the civil and criminal laws of Republic of Korea, there are already many laws that restrict freedom of speech and press. The provisions subject to judgement is not the Least Restriction Alternative since the enhancement of the correctional information and the change of the standard of alimony calculation can be better alternatives. The punitive damages system applied to media companies may cause a ‘chilling effect’ and seriously infringe on freedom of speech. In addition, as long as the Constitutional Court affirms the superior position of freedom of expression and declares the principle of clear and existing dangers, more strict standards should be applied to the constitutionality of laws limiting freedom of speech. Considering that punitive damages may severely limit the freedom of the press, and the examination intensity must be strict, it is difficult to recognize the balance of legal interests in the provisions subject to judgment.