사자명예훼손죄의 고의 인정에 관한 판례이론 비평

The Korean Criminal Code regulates certain acts of defamation against a person or the deceased as criminal offenses. The law provides that a person may face criminal punishment for asserting facts or disseminating falsehoods that defame another’s reputation. The use of criminal penalties, the most powerful means of protecting a person’s honor, inevitably restricts the fundamental right to freedom of expression. Accordingly, jurisprudence has evolved to limit the scope of criminal defamation through legal doctrines that go beyond the text of the penal provisions themselves. Where a person asserts facts that defame another, the unlawfulness of the act may be negated if there is proof of a reasonable ground to believe the facts to be true, even if they are not. Moreover, even in cases of defamation through falsehoods, courts have held that if the victim is a public figure—such as a high-ranking public official—and the statement is not malicious or manifestly unreasonable, the requisite intent for defamation may be deemed absent. Further, in defamation cases requiring a specific intent to disparage, it has been theorized that a non-malicious statement concerning a public figure may be presumed to relate to a matter of public interest, thereby negating the element of intent to disparage. These doctrines have been developed by Korean courts through interpretation and application of the penal provisions, either by adopting foreign legal theories or by referring to them to develop their own legal doctrines. However, such limiting doctrines have not been extended to the crime of defamation of the deceased. In a case involving defamation of a deceased president, the Supreme Court held that the crime is constituted if the speaker was at least aware of the potential falsity of the facts asserted, or, in other words, had dolus eventualis. Among all forms of defamation, it is only the defamation of the deceased to which no limiting jurisprudence has been applied; in fact, the crime is most leniently constituted. This judicial stance stands in stark contrast to scholarly opinions that contend the crime of defamation of the deceased requires a more definitive form of intent than mere dolus eventualis. The judiciary has never clearly affirmed that a deceased individual can be a holder of the right to reputation. It has merely recognized that the legal protection of a person's reputation continues after death. Given this state of the theory, there appears to be no compelling reason why the reputation of the deceased should be protected more extensively than that of the living. This article argues that the jurisprudence developed in defamation cases involving public figures—especially the doctrine of malicious attacks—should be extended to apply to cases of defamation of the deceased.