8/10/2017 Constitutional Court Korea > Decisions > Major Decisions Furthermore, the Supreme Court held that, even when an article contains an insulting judgment or an opinion, it qualifies as a justifiable act under Article 20 of the Criminal Act and is thus exempt from prohibition if it is not considered inconsistent with the established norms of society when viewed from the perspective of conventional wisdom of the times (2010Do6462, decided Feb. 23, 2012; 2010Do9511, decided Oct. 28, 2010; 2003Do3972, decided Nov. 28, 2003, etc.), thereby applying the Provision in a way that appropriately balances the interest and values gained from the freedom of expression and those from the protection of reputation. This way, the Provision adequately employs the portion concerning "justifiable act" in Article 20 of the Criminal Act in punishing public insult and thus allows for adequate guarantee of the freedom of expression. Therefore, it should not be considered that the Provision lacks proportionality in restricting the fundamental rights. Meanwhile, as mentioned above, insulting expressions on the Internet or other information and communication outlets can have quite a number of ramifications when disseminated, and, consequently, the concern for damage to personal reputation is growing more than ever. At the same time, even if the Provision permits some restriction on the freedom of expression through punishment of insult, there can be exceptions to the punishment under the Criminal Act when the expression in question is not in conflict with the established norms of society. Therefore, it is hard to conclude that the extent of restriction on the freedom of expression is significantly greater than that of the protection of personal reputation, and that the Provision has failed to balance the conflicting interests between the protection of personal reputation and the freedom of expression. 4. Review of the complainant's argument The complainant claims that the scope of insulting expressions prohibited under the Provision is too broad and extensive, and therefore even an abstract judgment or a critical statement made in the course of dialogue or exchange of opinions in everyday lives can be penalized on grounds that all such expressions amount to insult, which has been decided by the insulted person's ambiguous, subjective feelings about his/her own reputation. The complainant, in this context, argues that the Provision breaches the rule against excessive restriction. Yet, the Provision is intended to protect external reputation, which is social evaluation of one's character and value, instead of a subjective feeling one has for his/her own reputation (87Do739, decided May 12, 1987, Supreme Court). For insult to constitute a crime, the least requirement is mens rea, or the consciousness that one made an insult, if not the purpose or intention of offence. Moreover, whether a certain expression or action is derogatory of one's reputation or not should not be decided by one's subjective feelings for his/her own reputation; it is to be decided in an objective, reasonable manner with due consideration given to the circumstances, subject of insult, relevance of the statement or action in question, etc. Therefore, whether an expression fulfills the criminal element set forth in the Provision is merely a matter of conventional interpretation and application of law to be determined by the competent court in consideration of the precise circumstances involved in individual cases. The fact that an expression challenged by the complainant has the possibility of constituting an element of crime alone does not mean that the Provision violates the rule against excessive restriction. IV. Conclusion For the reasons stated above, the Provision does not violate the Constitution. And the holding of the Court, to which Justices Park Han-Chul, Kim Yi-Su, and Kang Ilwon filed a dissent below, is so decided. V. Dissenting Opinion of Justices Park Han-Chul, Kim Yi-Su, and Kang Ilwon We believe that the Provision violates the rule against excessive restriction and thus infringes on the freedom of expression, and submit the following dissenting opinion: A. Broadness of the Expression Regulated The scope of criminal element of "insult" as provided in the Provision is too broad. The Supreme Court interprets that "insult" is "an expression of abstract judgment or derogatory emotion not backed by facts which is likely to undermine one's social reputation (2003Do3972, etc., decided Nov. 28, 2003, Supreme Court). According to this standard, an expression containing negative or derogatory contents can possibly erode one's social reputation and therefore constitutes an insult. The majority opinion of this case states that the Provision only regulates the insulting expressions made in public or under recognition of an unspecified number or a majority of people. Yet this only confines the circumstances under which the insult takes place, such as the subject of insult and place of action, and does not limit the precise content of the "insult" subject to penalty. As the criminal element of insult is very extensively applied, "criticism" of others also becomes an insult and is subject to criminal punishment. In this vein, even 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 of somewhat violent nature that are widely used on the Internet are also punishable as a crime of insult. The "unheard of nobody (dutbojab)" at issue in this case is a shortened form of "unheard of and unseen nobody," which is a new online word that refers to a person or thing that is not well known. These kinds of a newly coined online terms are one of the interesting cultural phenomena widespread among netizens, and a slight degree of violence and awkwardness in expression does not necessarily constitute an insult. http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 5/7