언론보도와 명예훼손죄에 관한 연구
(A) Study on mass media reports and defamation
언론보도 언론자유 명예훼손죄 법학;
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Nowadays, the public has a strong tendency to make its personal decisions based on various information it obtains through a lot of mass media. This shows the mass media plays a decisive role in dissipating information to the public. The dark side to its role, however, is that there are many cases defamation on individuals or groups of people perpetrated by it. The freedom of the mass media is lay a foundation stone of democracy from make freely thoughts that take shape public opinion. But the mass media practical appearance are not existence guidance- runner that democratic from of government. The honor of human being should be respected. And it must be preserved as one of the most important fundamental human rights. The honor is defined as a social reputation on a human personality. In the modern society, we cannot however much emphasize that the function and the role of the press is of more importance than the past. But the press does more harm to society when it pursues only its benefit without playing its role as social public organ. The freedom of press report is an order of law designed to realize the democracy through expression of opinions formation of public opinions and communication of information and therewith, enhance the assimilative integration of the society. The Criminal Code divides the crime on honor into defamation of character and insulting. The protected benefits by these two criminal provisions involve the image or honor of the victim evaluated by the society. The crime of defamation requires act of defamation, openness of the act and indication of specific facts. Since this crime can infringe seriously on victim's legal benefit or honor in that victim's honor can be defamed wide and long, it has the super-purported elements of "purpose of defaming the person". Moreover, if the offender uses such mass media as "newspaper, magazine, radio or publication" to defame the person, his punishment will be heavier. Meanwhile, in order to make compromise between freedom of expression and protection of individuals honor, Article 310 of the Criminal Code particular that illegality of the defaming act will be relieved when "the particular facts are true and for the public benefit only". In other words, the specific fact indicated should be true if the offender should not be punished. Here, 'true' means 'true and correct', and the important parts of the fact indicated need to be true and correct, and therefore, details of the fact need not be true and correct. The public good means that the true fact indicated should satisfy the public interest, and that the offender indicated the fact for the public interest. Although any cause for relief from illegality does not exist, the offender may misunderstand that his act is not illegal. In other words, the offender was confused about the truth of the fact, as specified in Article 310 of the Criminal Code. To be more precise, such a case may be equated with 'misunderstanding of the preconditions for relief from illegality'. Such a problem may be solved by applying the 'principle of appropriate judgement about the truth'. That is, if the offender simply believed that the fact is true and correct, he or she will not be exempt from the punishment. He or she will not be guilty only when such a belief is appropriate and fair. As for the responsibility of proving a fact's truth and its being for public good, the Supreme Court position has been to make the defendant prove his/her is 'based on bona fide fact' and 'for public good' at same time. However, it will be reasonable in interpretation of the nation's Criminal Law to think that it lies with the prosecutor to prove the illegality of an act, as the justifiable cases of defamation concerns necessary condition of a Criminal Act. Such being the case, the burden of proving the truth shall be imposed on the defendant, whereas that of proving the existence of the purpose of slandering, that is to say non-existence of public good factor on the prosecutor, from a legal point of view. It is also necessary to try to enhance the degree of satisfaction of the parties on both sides of a dispute of defamation and economize the time and efforts needed to find a solution by integrating inter-related procedures, considering that under the reality victims of defamations by the mass communication find it hard to use the procedure of saving him/herself from the disgrace of a defamation. As seen in the foregoing, it is not easy to harmonize the need for protection of people 's honor and the freedom of expression, as there are a myriad of ways to approach it. The mass communication will find the activation of the system of counter-claim and the trend of claim amount being ever increased as attempts for limitation of their freedom, considering that the public will wish for steady reins on the mass media for protection of the personal privacy. Now it is time to settle on ourselves find a way of solution. Confusion has been made in the field of defamations, as we had to go through in a relatively short period what other nations took extended period of time in experiencing. We will have to arrive at the point of combination between the two mentioned rights in a rational way, taking other nations experience and studies into account.