정보통신망법상 명예훼손죄에서 ‘비방할 목적’의 판단 기준 - 대법원 2020. 3. 2. 선고 2018도15868 판결을 중심으로 -

This article aims to provide a commentary on the case regarding “the purpose to vilify” in defamation under the Act on Promotion of Information and Communications Network Utilization and Information Protection, ETC. In the case, the Supreme Court reversed the ruling of the first and second trials, which judged that the comments, mentioning the qualification of the student president of a Cyber University on Naver Band, lean more to "the purpose to vilify” than to “the public interest.” Because “the purpose to vilify” is inconsistent with something that is of the public interest concerning subjective intentions, the Supreme Court judged that if the main motivation and purpose of the actor are recognized as for the public interest, it would not be considered as defamation, even if it contains other private purposes or motives. In this regard, the Constitutional Court's ruling, issued in February 16, 2016, reviewed (1) whether “the purpose to vilify” in the Article 70 is an ambiguous concept that is undistinguishable from “the purpose to criticize”, which in turn violates the principle of definiteness and the claimants' freedom of expression, and (2) whether the relevant provision of the Criminal Act violates the principle of proportionality. In addition to examining the contrasting arguments of the two precedents described above, the proper (ideal) judgment structure of the courts and legislative improvement measures will be discussed, focusing on the purpose to vilify.