학문적 표현으로 인한 명예훼손죄에서 사실적시 여부의 판단

This article deals with a commentary on Supreme Court Decision 2017Do18697 decided October 26, 2023 (hereinafter “subject case”). The main issue of the subject case lies in whether expressions in the book written by the defendant defamed the reputation of Korean victims, who were Japanese military sexual slaves known as “comfort women,” by alleging false facts. In particular, as the abovementioned book, written by the defendant, who was a researcher, can be seen to have been written to publish the results of her research, whether the book may be protected as academic expressions comes into question. For a review on the issue of the subject case, this Article, first of all, examines the meaning and limitations of academic freedom and the concept and limitations of the freedom of academic expression. With respect to how to set the scope of academic expressions that are subject to protection, a review is needed as the premise of such discussion to discuss the freedom of academic expression. After confirming the range of discussion through such review, this article examines foreign cases in respect of whether there is any example of academic expressions being specially addressed in defamation cases. In relation thereto, domestic and foreign regulations on the penalties for historical distortions as well as judicial precedents of the foreign courts are reviewed by paying attention to the fact that a research on historical facts became an issue in the subject case. As such, after discussion on such premise, whether the distinct characteristics of historical facts should be considered in distinguishing the facts that are subject to defamation from opinions that are not subject thereto is examined. For this, this article examines the characteristics of historical facts and reviews previous discussion regarding the distinction between facts and opinions and the attitude of the Supreme Court precedents, and then examines merits and demerits of each opinion after dividing the opinions that can be expressed in relation to the subject case into two categories such as the opinion that a judgment should be rendered under the same standard as general defamation and the opinion that the scope within which facts can be alleged should be narrowed down in consideration of the distinct characteristics in academic and historical studies. Lastly, this article confirms the significance of the subject case along with the conclusion based on the legal principles of the subject case drawn through a process of review as above.