8/10/2017 Constitutional Court Korea > Decisions > Major Decisions Supreme Court has held that "insult" as a crime implies an expression of abstract judgment or derogatory emotion not backed by facts which merely undermines a person's social reputation (2003Do3972, decided Nov. 28, 2003, Supreme Court, etc.), which presents a standard for objective interpretation on the basis of the aforementioned textual meaning of the term. b. Whether an expression amounts to abstract judgment or derogatory emotion likely to undermine one's social reputation cannot be determined by an abstract, general standard; it can only be decided specifically and individually by conventional wisdom and sound common knowledge. c. As stated above, criminalizing insult is aimed at protecting the interest of external reputation as the social evaluation of one's value, and considering the legislative purpose or intent of the Provision, such as, unlike in the crime of defamation, not requiring factual statements as criminal element, it is hard to suspect that an ordinary citizen with healthy common sense and conventional legal awareness would find it significantly difficult to foresee what behaviors are outlawed. In addition, the Supreme Court offers an objective standard for interpreting the meaning of insult, so there is no cause for concern for a law enforcement agency to interpret it arbitrarily. d.Furthermore, specifically what kind of expression satisfies the criminal element of the Provision is a matter of a court's general interpretation and application of law that should be considered along with multiple factors, including the overall content and context of the expression instead of the literal text of the language, whether it had a contemptuous intent or was merely accidental, whether it is a kind of exaggeration or not, the background and nature of the dialogue or forum that took place, relationship between the offender and the person affected, etc. As it is inevitable that doubts can exist as to which actions meet the legal elements of crime in specific cases given the general and abstract nature of criminal norms, the doubtful situation alone is not sufficient to conclude that the Provision contravenes the void for vagueness doctrine. C. Whether the Provision Infringes on Freedom of Expression 1. Standard of review in this case The general personality right derived from Article 10 of the Constitution also includes the right to personal reputation (17-2 KCCR 311, 319, 2002Hun-Ma425, Oct. 27, 2005). And penalizing public insult of others under the Provision is aimed at protecting the external reputation guaranteed by the abovementioned Article 10 of the Constitution. However, the Provision limits the freedom of expression, which results in the conflict of two fundamental rights, namely the right to reputation and the freedom of expression. In cases as this where two fundamental rights are at odds, all conflicting fundamental rights have to be balanced for the sake of constitutional integrity and coherence so that the function and power of each right can be exercised to its fullest possible extent. Therefore, the focus of review will be whether the Provision serves legitimate purpose consistent with rule against excessive restriction and whether the means to achieve the purpose ensures appropriate proportionality between the restriction of the freedom of expression and the protection of reputation (3 KCCR 518, 528-529, 89Hun-Ma165, Sept. 16, 1991). 2. Legitimate purpose and appropriate means Although insulting expressions may be part of the right to freedom of expression, a public statement implying contemptuous judgment of a person's character will inevitably undermine his/her social value and the possibility to live and develop in society. Particularly in recent days where media and communication technology is prevalent, an insulting behavior can be easily communicated, and the resulting damage can be much more severe and irrecoverable compared to the past. Therefore, it cannot be said that there is no need to prohibit behaviors that damage a person's external reputation, which is a social evaluation of one's value, by publicly expressing abstract judgments or derogatory emotions likely to erode one's social evaluation. In this sense, the Provision serves a legitimate purpose, and penalizing insult made in public is an appropriate means to help achieve the legislative purpose. 3. Proportionality of restricting fundamental rights The Provision does not ban all insulting words or actions regardless of the target individual, place of action, etc.; the prohibition is limited to insulting expressions that are made in public, that is, under recognition of an unspecified number or a majority of people. In addition, the penalty prescribed in the Provision limits the freedom of expression within the necessary minimum in light of the following: the legislative intent and protected interest in the Provision is important, particularly so when dissemination of insult using the Internet and other information, communication media can have considerable ramifications; insult is punishable under criminal law only upon the victim's complaint; the ceiling of statutory punishment is relatively low as the Provision provides for "imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won"; a judge can achieve proportionality between unlawful acts and liability through discretionary sentencing for relatively minor crimes under special circumstances, such as through suspended sentence or suspended execution of sentence. http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 4/7