음성권의 형법적 보호 필요성에 관한 비교법적 연구 ― 통신비밀보호법에 의한 대화의 비밀에 대한 형법적 보호와의 비교 ―

The general right of personality, grounded in human dignity, is accepted as one of the fundamental constitutional Rights. The constitutional court of Korea recognizes the right to his/her own voice, as a concrete form of the general right of personality, against the misappropriation of a person’s voice. The right to his/her own voice encompasses every aspect of the self-determination regarding whether his/her own voice is to be stored, heard or transmitted. Though, it currently does not constitute a criminal offense to violate the right to his/her own voice. Privacy as a constitutional right is guaranteed separately from the human dignity in the Korean Constitution. The Communications Protection Act, anchored in privacy and not in autonomy or self-determination, provide for the protection of private conversation. Although this Act requires in principle the consent of all parties to legally record a conversation, it allows any party to a conversation to record a conversation without the consent of other parties. Some argue that the right to his/her own voice deserves more protection and it should be criminally prohibited to record a conversation unless everyone participating give their consent, even if he who records is a party to the conversation. Even though it is undeniable that the self-determination of an individual should be respected under all circumstances, it does not imply that a breach of the individual’s autonomy should always result in criminal sanction. It has long been customarily socially acceptable that an individual can legally record a conversation without the other person's consent when he is a party to the conversation. There seems no proper cause to justify the criminalisation of activities that have long been regarded as socially as well as ethically tolerable.