whether the true factual statement, against which an accusation or
criminal complaint is made, represents “secrecy of private life.” If that
statement is considered as not amounting to secrecy of private life, then
there will be an increased number of cases in which the investigation
does not proceed further or result in a prosecution because the statement
is insufficient to establish a crime from the outset. Consequently, the
partial unconstitutionality decision will certainly reduce the present
chilling effect on freedom of expression.
6. Finally, taking together the purpose and intent of Article 21 of the
Constitution, guaranteeing freedom of expression and its boundaries
limited by the honor of other persons and the protection of the right to
personality, the need to harmonize freedom of expression with the
secrecy and freedom of private life guarantee in Article 17 of the
Constitution, and the fact that striking down only an unconstitutional part
of a provision does not interfere with legislative power and reflects
judicial respect for such power, we conclude that the part of the
Provision at Issue concerning the stating of facts “that are true and do
not amount to secrecy of private life” violates the Constitution.
Justices Yoo Namseok (Presiding Justice), Lee Seon-ae, Lee Suk-tae,
Lee Eunae, Lee Jongseok, Lee Youngjin, Kim Kiyoung, Moon Hyungbae,
and Lee Mison
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