종교적 신념을 표현한 조형물과 모욕죄의 판단기준 - 독일 비텐베르크 시립교회 외벽 조형물 사건을 중심으로 -

The offence of insult that is punishable under Article 311 of the Korean Criminal Code can be committed in various forms. Accordingly, insult can be understood as an act of expressing an abstract judgment or contemptuous feeling that can lower someone’s social evaluation without necessarily alleging facts. On the other hand, all citizens can freely express own specific opinions as an individual or a group according to the freedom of expression protected by the Korean Constitution. Whether it relates to religion or political opinion, or it includes public or private content, it is protected in principle. Of course, it should be noted that even if the freedom of expression is guaranteed to an individual or a group, it is beyond the scope of legal protection that someone violates fundamental rights or legal interests of others. Practically, there is a social controversy about how far the freedom of expression given to individuals or groups should be protected when it relates to issues of religious belief, a political opinion or sexual identity, etc. Actually, these controversies tend to escalate into legal disputes in that the freedom of expression enjoyed by an individual or a group may be an act of insulting or infringing upon a specific person or group of people. As a specific example, there was a recent case in Germany involving medieval sculptures carved on exterior walls of churches according to religious beliefs, which are meant to denigrate, slander, and insult certain people and a certain religion. It is worth noting that the German Federal Court judged that the public display of the sandstone sculpture (Judensau) and the phrase “rabini Schem HaMphoras” carved on the exterior wall of Wittenberg Stadtkirche did not bring the effect of insulting Jews and Judaism in the specific circumstances, therefore it did not constitute an insult according to the German Criminal Code. This article focuses on analyzing the meaning and limitations of the judgement of the German Federal Court (including the first and second instance) by reviewing legal issues of the so-called “the exterior sculpture of Wittenberg Stadtkirche” case. Furthermore, this article deals with whether the public display of the exterior sculpture by the church commits an offence of insult under the German Criminal Code, and how the scope of protection of the freedom of expression can be established in relation to religious beliefs.