혐오표현 판단기준 정립을 위한 시론적 고찰 ― 국내외 법제 및 판례 비교를 중심으로 ―

This study examines the current framework of hate speech regulation in Korea, which relies on a patchwork of discrete statutes, including provisions on criminal defamation and insult, civil liability for torts, and a range of sector-specific laws such as the Information and Communications Network Act, the Broadcasting Act, and other administrative or human rights regulations. While these laws provide partial means of response, they were not designed to regulate hate speech per se, leaving the concept legally ambiguous and resulting in inconsistent adjudication. Consequently, victims who should be protected are often left without adequate remedies. Challenges such as difficulties in identifying victims in cases of group-directed hate speech, conflicts with freedom of expression, and the unique characteristics of online environments remain insufficiently addressed under the current system. Nevertheless, the judiciary and the National Human Rights Commission of Korea have repeatedly underscored the harmful effects of hate speech through judgments, decisions, and opinions. If hate speech is to be considered as a factor in assessing the legal elements of specific cases, its definition must be articulated with precision and supported by coherent legal reasoning to avoid arbitrary assessments. Only then can judicial or quasi-judicial determinations―whether by courts or human rights institutions―transcend normative or declaratory statements and secure legal stability and social legitimacy. Against the backdrop of prolonged delays in enacting comprehensive anti-discrimination legislation, this study argues for the establishment of systematic and clear criteria for regulating hate speech. To this end, it pursues three objectives. First, it examines the applicable norms and their limitations within the current Korean legal system. Second, it conducts a comparative analysis of international and foreign approaches, including those of the United Nations, the Council of Europe and the European Court of Human Rights, as well as Germany, the United Kingdom, Canada, and the United States. Third, based on this comparative inquiry, it proposes balanced and context-sensitive regulatory models suitable for the Korean context and identifies key evaluative elements that may guide judicial and administrative decision-making. By articulating preliminary criteria that reconcile freedom of expression with the need to prevent social exclusion and incitement to violence, the paper seeks to contribute to the establishment of a rational and consistent framework for hate speech regulation in Korea.