名誉権と表現の自由に関する一考察 : 日韓の免責法理の比較を中心に  [in Japanese] A Study on the Right of Honor and the Freedom of Expression : Focusing on Comparative Study on the Exemption from Liability for Defamation in Japan and Korea  [in Japanese]

Recently, increasing of libel lawsuit against media and soaring of consolation money are commonly indicated in Japan and Korea. In relation with these phenomena, I comparatively review the mechanism and application of the exemption from liability for crim

Recently, increasing of libel lawsuit against media and soaring of consolation money are commonly indicated in Japan and Korea. In relation with these phenomena, I comparatively review the mechanism and application of the exemption from liability for criminal defamation and defamation tort in two nations in this study. In Japan and Korea, requirements of the exemption from liability for criminal defamation and defamation tort is supposed identical factors also, the actual application in judgment is found similar tendency except unimportant portion. As shown the argument of misunderstanding requirement (although any cause for exemption from liability does not exist, the offender may misunderstand that his act is not illegal), it is focused on easing burden of the defense requirement in works of harmonizing the right of honor with the freedom of expression. However, I doubt, in relation with constitution protection of defamatory statements, the misunderstanding requirement is being actually applied for easing burden of the defense requirement. As exemption from liability of defamatory statements is largely due to the misunderstanding requirement in both nations, namely 'misunderstanding judgment' (the offender believed that the fact is true, and such a belief is appropriate), which is ambiguous concept, should be overcomed and clear decision standard of misunderstanding judgment according to character of the subject and position of offender should be established. Also, increasing of consolation money is questionable in codition of maintaining a strict burden of proof which is against an exemption from liability. Therefore, overall the defamation law including comsolation money sum should be reinspected, and reconsideration is requested about the rule of exemption from liability under the approach of constitution dimension in both nations.