징벌적 손해배상제도를 도입한 언론중재법의 위헌성 여부

The amendment to the Media Arbitration Act imposes punitive damages on media organizations that have reported or delivered fake news. Specifically, media organizations that intentionally or grossly negligently reported or delivered fake news are subject to an aggravated liability for damages up to five times the amount of damage. In general, the punitive damages system has the legislative purpose of not only sanctioning the perpetrators by imposing increased liability for damages for malicious torts, but also preventing similar torts by potential perpetrators. Because of these criminal legislative purposes, some critics have been raised that the punitive damages system does not match the Korean legal system, which belongs to the continental legal (civil law) system that separates civil and criminal liability. However, since the punitive damages have already been introduced in many laws, it is difficult to argue that the Constitution is violated only by introducing a punitive damages system in the Media Arbitration Act. However, there is still a question that the punitive damages system, which is expected to be introduced in the Media Arbitration Act, may violate the void for vagueness doctrine and the principle of the prohibition of excessive restriction required by the Constitution and infringe the freedom of expression. However, it is difficult to judge that the elements of the punitive damages system violate the principle of void for vagueness doctrine when the criteria for judgment of the doctrine, which has been continuously developed by theories and precedents of the Constitutional Court, are applied. Also, it cannot be concluded that the punitive damages system is unconstitutional from the point of view of the excessive restriction prohibition principle that embodies the proportionality principle.