8/10/2017 Constitutional Court Korea > Decisions > Major Decisions and Expression also said that criminalization of defamation represents a limitation on the freedom of expression and suggested decriminalizing defamation, saying that criminal punishment cannot be justified as long as people can sue for damages from defamation through the civil code. E. Legislation and Cases The origin of insult crime goes back to the contempt of God in the Roman Empire and l？se-majest？ in Europe, the crime of violating majesty, and many countries around the world currently have provisions classifying insult as criminal offence. However, it has been abolished in part or has become practically insignificant in a great number of countries for reasons that such prohibition prevents free criticism and overly restricts freedom of expression in a democratic society. The U.S. Supreme Court held in a case that it is unconstitutional to criminalize defamation even when statements are not "false" nor made with "actual malice" as it limits criticism and free debate and discussions. Under the U.S. jurisprudence, "fighting words" are not one of the expressions protected by the Constitution, but they fall under a narrowly limited category of speech. The Supreme Court struck down a law that prevented "insulting or fighting words which by their very utterance tend to incite an immediate breach of the peace" and another legal provision that prohibits "swearing others by using intimidating, defamatory, and insulting languages," stating that the provisions involve excessively broad range of speech and thus may conflict with the freedom of speech protected under the Constitution. Looking into the civil law countries, Article 231 of the Penal Code of Japan provides for punishment of insults, but the offenders only get a slap on the wrist―misdemeanor imprisonment without work or a petty fine. And insult is the only crime penalized by misdemeanor imprisonment without work or a petty fine under the Penal Code. Section 185 of the German Criminal Code penalizes insult, but it is known to be rarely punished in practice. The punishment of insult in Germany is initiated by Privatklage, or private prosecution led by the victim, instead of the prosecutors, and the extreme complexity and trouble involved in the procedure tends to prevent its abuse. Since 2000, France has been imposing only fines for insulting a person except for certain cases specified otherwise, and in 2004 abolished the offence of insulting a foreign head of state. Latin American penal codes used to prohibit insults, threats, and violence aimed at public officials in duty, but a large number of countries including Chile and Costa Rica have repealed the ban, and the Supreme Court of Honduras and the Constitutional Court of Guatemala have held such penalty for insult unconstitutional. F. Sub Conclusion The Provision overly restricts free expression and thus limits free debate and constructive criticism. Therefore, the Provision fails to comply with the rule against excessive restriction and infringes on the freedom of expression, which is in violation of the Constitution. Justices Park Han-Chul (presiding), Lee Jungmi, Kim Yi-Su, Lee Jinsung, Ahn Changho, Kang Ilwon, Seo Kiseog, and Cho Yongho Constitutionality of the provision of the Public Health Promotion Act designating Internet Café as non-smoking zone Constitutionality of imposing criminal punishment on financial company staffs who received money or valuables http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 7/7