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Defamation of Public Figures - An Analysis of the Judicial Precedents Concerning the Structure of Civil and Criminal Indemnification
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공인에 대한 명예훼손- 그 민형사상 면책 구조에 관한 판례 이론의 분석

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Type
Academic journal
Author
Journal
전북대학교 동북아법연구소 동북아법연구 동북아법연구 제9권 제2호 KCI Accredited Journals
Published
2015.1
Pages
353 - 385 (33page)

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Defamation of Public Figures - An Analysis of the Judicial Precedents Concerning the Structure of Civil and Criminal Indemnification
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In the history of modern law, defamation law has developed for the purpose of restricting freedom of speech in order to protect the fame of public figures. Responding to that trend, the precedents of various countries have widely developed legal theories allowing indemnification of media in the case of the defamation of public figures. For example, Japanese courts created the reasonableness theory, which allows exempting media from the responsibility of compensating for damages on the condition of reasonable grounds in believing that the report was true. The precedents of the U. S. created the actual malice rule, in which a victim of defamatory reports cannot claim for damages unless it is proven that the actor’s expression was made on the basis of actual malice. Korean precedents accepted the reasonableness theory of Japan, whilst also constructing a new theory by adapting the actual malice rule of the U. S. Initially, the Constitutional Court tried to guarantee wider critical expressions against public figures by acknowledging that a different criterion must be applied to defamation cases against public figures in comparison to defamation cases against private figures. Meanwhile, the Supreme Court tried to restrict the civil and criminal responsibilities of defamation of public figures with the rule of ‘malicious or obviously unreasonable attack.’ That is, firstly, the Supreme Court presented the theory that the “purpose to slander” of Article 309 of the Criminal Code should be denied unless the defamatory expression was a ‘malicious or obviously unreasonable attack.’ Secondly, the Court presented the theory that the criminal intent of Article 307 should be denied unless the expression is a ‘malicious or obviously unreasonable attack.’ This paper focuses on analyzing the theories on which Korean precedents were originally invented amid the worldwide trend of the development of defamation law.

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