모욕죄의 위헌성과 친고죄 조항의 폐지에 대한 정책적 고찰

Abstract

In 2008, the Korean government and the ruling party proposed a bill to enhance the crime of insult in two ways: (1) enhance the punishment to up to 2 years of imprisonment and (2) eliminate the requirement that the victim file an accusation thereby allow the police and prosecutor to prosecute insulting comments even if the supposed victim does not come forward first. In this article, the author argues that the existing criminal law of insult is unconstitutional and falls miserably off the international human rights standards, and that any attempt to enhance it should therefore be aborted. Insult is punishment on expression of one's opinions and feelings on account of an insulting feeling that it causes on others. However, opinions and feelings are valuable part of speech which should be constitutionally protected. Narrowing the scope of insult to ‘bad language’ does not relieve its unconstitutionality because it is not the text of the expression that causes the stress on the hearer but the context in which the expression was made. Major elements of this context are the relative social status of the speaker and hearer, and the hearer's sense of self-worth, which in no way can be a constitutionally acceptable basis for punishing the speaker who does not have any control over those elements. The author notices that general insult law exists only in Germany, Japan, Korea, and Taiwan and the insult-against-the-head- of-state laws are retained only by authoritarian regimes who are continuously pressured by international bodies to abolish them. The author proposes instead adoption of hate crime laws, which most developed countries adopted instead of enhancing the already uncons- titutional law of insult.