정보통신망법상 명예훼손죄의 ‘비방의 목적’에 대한 비판적 검토 ― 연혁적 근거 및 목적범에 대한 해석을 중심으로 ―

Recently, incidents of defamation online and the resulting cases of harm have been steadily increasing. There is a growing voice calling for strong penalties for cyber defamation. However, on the other hand, there is also a perspective advocating for the timely decriminalization of defamation based on truth. Our Criminal Act Article 309 required the “purpose to defame” at the time of its enactment, but it is difficult to confirm the purpose and circumstances of defining defamation as a specific offense through prior research or literature. Therefore, it would be meaningful to examine the historical and comparative basis for the above purpose. After reviewing the elements of defamation in our legal system, it was confirmed through a comparison with the laws of major foreign countries that the requirement of “purpose to defame” was established by referring to Article 173 of the Swiss Criminal Code in 1937 at the time of the enactment of the current Criminal Act. However, since Switzerland and South Korea have differences in the systematic exclusion of legal liability of the perpetrator in defamation cases, it is necessary to establish a separate interpretation of defamation through Supreme Court precedents. The Supreme Court confirms that the “purpose to defame” is an excessive subjective element and demands strict evidence for it, but it does not adequately consider this desirous element in the trial precedents related to the purpose of the perpetrator. This is the same for Article 309 of the Criminal Act and the defamation offense under the Act On Promotion Of Information And Communications Network Utilization And Information Protection. Since the perpetrator's “purpose to defame” is an dolus eventualis, it must be proven indirectly through circumstantial evidence. Even so, at least what the perpetrator's purpose was should have been clearly revealed. In the argumentation process, it is overlooked that the essential element of the purpose of the offender is “desire,” and it must be an active hope or a certain level of certainty. Furthermore, It is inconsistent with the criminal system of our criminal law to derive the “purpose” of the component element from the opposite interpretation of Article 310 of the Criminal Act. In addition, in practice, “purpose to defame” and “intention” are not separately distinguished. There is no benefit to especially regulate a separate subjective element to aggravate the statutory form. As the current defamation offense under the Information and Communications Networks Act is nothing more than a mere addition of statutory penalties to the defamation offense under Article 309 of the Criminal Act, except for the “information and communications network” part, it is necessary to delete the current defamation offense under the Act On Promotion Of Information And Communications Network Utilization And Information Protection and amend Article 309 of the Criminal Act in the following manner: ‘...by means of other publications, information and communications networks, television, the Internet, or other media’. Even if the defamation offense is retained in the current the Act On Promotion Of Information And Communications Network Utilization And Information Protection, the Supreme Court's attitude of interpreting the actor's ‘purpose to defame’ broadly is undesirable in light of the criminal law as ultima ratio and its relationship with the freedom of expression under Article 21 of the Constitution, so it is necessary to limit its scope.