형사처벌 대안으로서의 징벌적 손해배상 - 명예훼손을 중심으로 -

As means of protecting rights against the infringement of personality rights, there exist criminal defamation and insult under the Criminal Act, claims for damages and appropriate measures for restoring honor under the Civil Act, and correction reports or counterstatements under the Act on Press Arbitration and Damage Remedies. These remedies can be categorized into ex-post (after- the-fact) and ex-ante (preventive) measures. Criminal punishment, compensation for unlawful acts, and correction reports are ex-post remedies, while injunctions and punitive damages recognized by precedent and academic theories fall under ex-ante or preventive remedies. Despite these various remedies, once personality rights are infringed, it is extremely difficult to restore them ex-post. Therefore, the ruling party is currently pushing for the introduction of a punitive damages system, which serves both preventive and punitive purposes. With the introduction of punitive damages, the question arises as to whether criminal defamation should be abolished. This concerns the relationship between punitive damages and criminal defamation. The decriminalization of defamation has long been debated. Although the Constitutional Court has repeatedly held criminal defamation to be constitutional, recent opinions have increasingly leaned toward unconstitutionality, suggesting that criminal defamation may eventually disappear from the Criminal Act. Before that, legislative amendments could be considered for decriminalization. However, it is necessary to examine whether punitive damages can adequately serve as a substitute for criminal punishment, and whether punitive damages and criminal defamation are truly in opposition to each other. Furthermore, if punitive damages are to be introduced, we must also discuss whether they should be included only in specific laws such as the Act on Press Arbitration and Damage Remedies, or whether they should be comprehensively stipulated in general laws such as the Civil Act. Starting from these questions, this paper examines the feasibility, necessity, and concrete implementation methods of introducing punitive damages for the infringement of personality rights. The conclusion reached through this study is that punitive damages and criminal defamation are not in an antagonistic relationship, but that the introduction of punitive damages is worth considering to enhance the substantive protection of personality rights. However, it is proposed that the scope of punitive damages should be limited to specific types of cases defined in individual laws such as the Act on Press Arbitration and Damage Remedies, the liable party should be limited to private individuals, and the compensation criteria should be clarified. Specifically, it is suggested that the fine amount finalized in criminal proceedings should serve as the starting point, and the amount of compensation should be increased depending on the number of aggravating factors stipulated in law.