In cases as above, can the remarks or expressions of the criminal defendant be
deemed to have been made “sufficiently transparent for the whole world to recognize
the speaker?” This is above and beyond lawmakers’ expectations and is not to be
demanded by legal reasoning. A person develops his/her sociability by verbally
interacting with others. A person’s speech is the most important means to connect
him/her with others and have a social relationship. The freedom of speech is the crucial
right constituting the freedom of expression. As the proverb, “bad news travels fast,”
words per se have propagation possibility. Punishing on the sole basis of the
propagation possibility regardless of whether words about others are true or false is
inconsistent with the fundamental nature of humans and continues to pose a threat to
the freedom of expression that is constitutionally guaranteed. Therefore, the reason
why criminal defamation requires publicity as a constituent element is to provide the
space to breathe in consideration of the fundamental nature of humans as above. In
terms of guaranteeing the fundamental rights under the Constitution of the Republic of
Korea, recognizing publicity on the grounds of propagation possibility is not desirable
even with regard to individuals’ private conversations as the cases dealt with in the
above Supreme Court decisions.
The term “propagation possibility” means that such result has not occurred in reality
but has potential for future dissemination. Viewing the assumption that there is
“possibility” of being propagated in the future in a situation that such consequence
does not occur as the ground of punishment is contrary to the principle of legality.
Circumstances remain unchanged even when possibility changes to probability.
Recognizing publicity merely on the sole basis of propagation possibility means that
an act of defaming another person’s reputation - an act that there is a risk of being
defamed according to the Majority Opinion, which views defamation as endangerment
offences - is subject to punishment on the grounds that there is a “possibility” of
becoming public through propagation even in the case where it is not “publicly” done.
Such interpretation corresponds to unjust extensive and analogical interpretation,
which should not be allowed as it constitutes interpretation obviously unfavorable to
the criminal defendant.
C. The theory of propagation possibility is contrary to the principle of legality and the
principle of clarity.
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