8/10/2017 Constitutional Court Korea > Decisions > Major Decisions VOLUME SIZE KOREAN Search Introduction Jurisdiction Decisions International Relations Decisions e-Court Library Home > Decisions > Major Decisions Major Decisions Major Decisions [Rights of Freedom] [Full Opinions] Punishment of Insult as Criminal Offense Case Case Search 12 Landmark Cases on Social Integration 25 Landmark Cases (Cartoons) Caseload Statistics Jun 27, 2013 / Case NO. : 2012Hun-Ba37, KCCR : , View : 96 Punishment of Insult as Criminal Offense Case [2012Hun-Ba37, June 27, 2013] Questions Presented 1.Whether the portion concerning "insult" in Article 311 of the Criminal Act penalizing insult (amended by Act No. 5057, Dec. 29, 1995) (hereinafter referred to as the "Provision") is void for vagueness (negative) 2.Whether the Provision infringes on the freedom of expression (negative) Summary of the Decision 1.Insult as a crime is an abstract judgment or an expression of derogatory emotion unaccompanied by factual statements that can undermine one's social reputation. Given the interest, legislative purpose, etc. of criminalizing insult, it does not appear to be significantly difficult for an ordinary citizen with common sense and conventional legal mind to foresee what kind of acts are banned, and there is no concern for arbitrary interpretation by law enforcement agencies. Thus, the "insult" stated in the Provision is not void for vagueness. 2.If an expression insulting someone's character is made publicly, the victim's social value will be degraded and his/her life and development as a member of society can be affected. Therefore, the act of defamation using insulting words definitely needs to be prohibited. Additionally, considering that insult is, among others, punishable only upon the victim's complaint and has relatively low statutory maximum, and that courts generally seek adequate balance between the freedom of expression and the protection of reputation by appropriately applying Article 20 of the Criminal Act on "justifiable act", the Provision does not infringe on the freedom of expression. Dissenting Opinion of Justices Park Han-Chul, Kim Yi-Su, and Kang Ilwon The scope of elements of "insult" in the Provision that constitute a crime is excessively broad, and negative or derogatory expressions against a person amount to insult as they are likely to undermine one's social reputation. In the same vein, not just hateful cursing of someone humiliating enough to tear down his/her character, but satirical, humorous literary expressions that use ridicule to expose and criticize the world, twisted and negative intentions taking the form of polite expressions, newly coined words on the Internet that are somewhat violent, etc. are also punishable as a crime of insult. Consequently, even the expressions that warrant the protection of the Constitution can be regulated. Criminal punishment of insult limits the possibility of raising issues in social communities and addressing them constructively through free exchange of different views and criticism. If some negative languages or critical expressions on sensitive political, social issues used in political, academic debates or communications are considered insult and regulated accordingly, political and academic statements will be threatened and the possibility of open debates will be restrained, weakening the essential function of the freedom of expression. In addition, the exercise of the state's authority to punish crime should be confined to the minimum if it is to be prescribed by criminal law; merely an abstract judgment or a derogatory expression can be regulated through selfcorrecting mechanism of the civil society or imposition of civil liability; and criminalizing insulting words or behaviors does not meet the international human rights standards either. Taking these into consideration, the Provision fails to observe the rule against excessive restriction and thus violates the freedom of expression. The Provision at Issue Criminal Act <Amended by Act No. 5057, Dec. 29, 1995> http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 1/7