통일과나눔 아카이브 8000만

전체메뉴

학술

  • HOME
  • 논문
  • 학술

명예훼손에 있어 사실과 의견의 구별론– 서울고등법원 2014. 8. 8. 선고, 2013나38444 판결에 대한 검토 -

Distinction between Opinions and Facts in Defamation - A Comparative Study on the Case of Seoul High Court 2014.8.8 2013나38444 -

상세내역
저자 박범영;한효주
소속 및 직함 국회
발행기관 법조협회
학술지 법조
권호사항 65(5)
수록페이지 범위 및 쪽수 300~338
발행 시기 2016년
키워드 #의견, 사실, 명예훼손, 종북, 주사파, 경기동부연합, 의견과 사실의 판단기준, 의견과 사실 구별론, 리스테이트먼트, 표현의 자유
원문보기
상세내역
초록
As Byon, ○○(Representative Media Watch) writing on his Twitter in March 2012 “Lee, ○○ is a(the Kyonggi Eastern Union) manageress.” “Due to the nature of the organization Jongbuk NL faction, Lee, ○○ even has no rights to judge. She is a just follower of that organization.” etc. He described the couple Lee, ○○ and Sim, ○○ as Jongbuk NL faction. Accordingly, Lee, ○○(former Representative of Unified Progressive Party) and her husband Sim, ○○(lawyer) had filed a lawsuit for damages due to defamation. However, the Seoul High Court (2014.8.8 2013나38444) borrowed ‘Jongbuk’ and ‘Chinbuk’ concept, which is not in the dictionary and is not clear whether there is social consensus or not. Seoul High Court judgment was the expression ‘Jongbuk’, ‘NL faction’, ‘Kyonggi Eastern union membership’ to be true. Seoul High Court easily configured the jurisprudence that honor is compromised, for a reason the social prestige and reputation of the plaintiff was seriously damaged. However, the public has considered the concept of ‘Jongbuk’ as the tendency to agree or to act favorably for North Korea, or the people universally supporting and defending for North Korea. Thus, the expression ‘Jongbuk’ may be a true opinion, not a fact. In addition, the expression ‘Kyonggi Eastern union membership’ and ‘NL faction’, also referred to a person's general behaviors or tendencies, etc. Therefore it is not a matter of the area of fact, but the area of the opinion. Brennan Justice of the US Supreme Court presented the meaningful minority opinion on criteria for distinguishing between facts and opinions we should consider at Milcovich v. Lorain Journal Co., incident, - “type of language”, “meaning of this statement in context”, “proven potential”, “the social environment in the statement”. In the expression ‘Jongbuk’, ‘NL faction’, ‘Kyonggi Eastern union membership’, we need to apply the same criteria. When we follow the same criteria, the expressions that the Seoul High Court approved of the fact would be estimated to be close to opinions rather than facts. In this context, although the Seoul High Court configured the jurisprudence of the judgment about corpus delicti of Defamation, it is an unfortunate part that the court didn’t access precisely on the expression ‘Jongbuk’, ‘NL faction’, ‘Kyonggi Eatern Union membersip’. It is regrettable the court missed the crucial part of the judgment. In recent news from public service broadcasting, the defamation is caused by anchors, announcers and the panels by passing a personal opinion without filtration rather than fact. Also, it becomes possible to exchange recent public opinions through an interactive internet broadcasting, not to simply deliver only true. And it frequently occurs to exchange views and comments made by the public together with. Given these points, in order to resolve the conflict between the freedom of expression and the rights of honor, a distinction between opinions and facts is needed. It becomes more important than ever. The new jurisprudence of the Court to opinions and facts, and establishing criteria are required in the future.
목차