명예의 보호와 형사처벌제도의 폐지론과 유지론 - PD수첩 광우병보도 수사에 즈음하여 -

Abstract

In June 2009, producers and writers of MBC were indicted for producing a documentary on the susceptibility of American beef to mad cow diseases. The crime they were charged was defamation of the government officers who declared the U.S. beef 'safe' and tried to import it into Korea. Can one's mere disagreement with the government position on a scientific issue be considered defamatory against the government? Given the latitude given to people of all civilized countries in criticizing "public officers" and "public figures", can a defamation charge stick? Putting aside these two questions, there still remains the question: Why is the prosecutor attempting this ludicrous indictment? Many governments of the world seem to think that criminal defamation by nature becomes the legal venue through which the heads of the state use the prosecutors to suppress the voices critical of them. For this reason, they are decriminalizing defamation and many international human rights NGOs are welcoming and calling for such change. PD Diary case clearly shows the very danger which has become the reason for the decriminalizing trend. The prosecutors investigated this case for over one year and has not identified a single intentional falsity in the documentary, an element of criminal defamation. In this article, the author evaluates various arguments for or against abolition of criminal defamation. The author concludes that the most convincing argument for decriminalzation is that the government must be readily available for critique and monitoring by the people, and when the government itself becomes the administrator of the defamation discipline, such critique and monitoring will be chilled, and if not chilled, it will be subjected to a trumped-up charge, as PD Diary case is.