모욕죄는 혐오표현을 어떻게 다루는가? — 국내 모욕죄 판례(2015∼2024년) 비하 표현 분석 —

This study analyzed case law on 40 insult crimes from 2015 to 2024 to examine the characteristics of insulting expressions, whether the court considered hate speech, and changes in the criteria for judging insult crimes. As a result of analyzing insulting expressions over the past 10 years, it was found that if the victims were women, the likelihood of being found guilty of insult was higher than for men. and there was a tendency to take more consideration into account the mental pain and emotion of insult of female victims. This suggests that the courts tend to perceive women as more psychologically vulnerable and as objects in need of protection. The most notable feature is the continuous appearance of derogatory and hateful expressions related to gender. Victims of sexually degrading expressions were mostly women, and when sexually degrading expressions were used against female victims, there is a high possibility that the insult charge will be recognized. In addition, disparagement of Jeolla-do Province has been consistently present since 10 years ago, and hatred of China has also appeared in a form combined with misogynistic expressions. In addition, in cases where the elderly were victims of insulting expressions, the age was specifically stated in the verdict and the insult crime was acknowledged. Meanwhile, there was a clear difference in the use of abusive language online and offline, with direct and crude insults being relatively more prevalent offline. On the other hand, online, indirect criticism or ridicule tends to appear relatively more often than immediate and explicit insults. Despite the increasing frequency of discriminatory insults such as sexism, disability ridicule, appearance belittling, and age-based sarcasm in recent years, there have been few precedents in which the courts have directly addressed the issues of hate speech and discrimination. Among the cases examined in this study, a Supreme Court case that mentioned hate speech was the only case in which a female celebrity was insulted by being called a “national hotel girl,” but even that ruling did not include a specific explanation of the severity or social impact of the hate speech. While the judgment on the crime of insult focused on establishing the basic concept of the crime of insult in the early 2000s, there has recently been an increasing tendency to strike a balance between freedom of expression and protection of reputation. Recently, the criteria for judging insult crimes have remained consistent, but the method of application has been developing in a direction that is becoming more detailed and careful. However, despite the recent increase in hate speech, the case law cited in insult judgments does not directly mention hate speech. These analytical results suggest that the court needs to go beyond simply judging insulting remarks containing hate speech based on the standard of “external reputation protection” and actively judge their illegality by considering the possibility of social discrimination and incitement to hatred.