사실적시 명예훼손죄의 비교법적 고찰: 독일 형법을 중심으로

Although the crime of defamation by true statements involves the disclosure of facts that are true, it has long been the subject of constitutional challenges and calls for abolition in Korea, and another constitutional complaint has recently been filed. This paper, in light of the current debate on whether to amend or abolish the offense, undertakes a comparative legal analysis of German criminal law provisions on defamation, which, in principle, exempt the perpetrator from punishment if the truth of the asserted or disseminated fact is established. Under German criminal law, §186 StGB stipulates that no punishment shall be imposed if the defamatory fact asserted can be proven true, thereby making truth an objective condition of punishability. In addition, §193 StGB provides a special justification ground for offenses against honor in cases where the statement serves the protection of legitimate interests. Together, these provisions create a dual safeguard for individuals who make honor-related expressions based on true facts. However, even where the truth of a statement is established, §192 StGB (“Insult despite proof of truth”) allows punishment under §185 StGB (Insult) if, considering the form or circumstances of the statement, the manner of expression itself is deemed insulting. Thus, German law also ensures protection for victims of defamation. Moreover, §192a StGB (Incitatory Insult) criminalizes certain forms of insult and malicious defamation irrespective of the truth of the facts, thereby closing legislative gaps through the creation of new offense categories. Drawing on the German example, it would be appropriate for Korean law to revise Article 310 (1) of the Criminal Code so that failure to prove the truth of the alleged fact is explicitly defined as an objective condition of punishability, with the burden of proof placed on the prosecutor. However, given both the explicit nature of such a condition and the practical difficulties victims face in proving truth, the principle of in dubio pro reo should be applied only in a limited manner. Furthermore, Article 310 should be revised to more concretely specify examples of “justified acts” in defamation cases and to differentiate the requirements for their application, thereby clarifying the scope of justification. On the basis of such alternatives inspired by German law, Korean criminal law must seek to strike a balance in which freedom of expression is reconciled with the protection of privacy and personal rights, while at the same time reflecting the traditional values and cultural particularities of Korean society, which place a high value on honor and reputation.