헌법적 관점에서 본 미네르바판결 - 소위 ‘허위사실유포죄’의 헌법적 문제점을 중심으로 -

초록

A famous economic disputant, named as ‘Minerva’ on the Internet Bulletin Board, was arrested and prosecuted for disseminating false information to disturb public order in the early this year. Actually, the Article §47① of the Framework Act on Telecommunications(hereinafter ‘the Article’) provides “A person who has publicly made a false communication over the telecommunications facilities and equipment for the purpose of harming the public interest shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won”. But the Prosecutors’ Office and the Court interpret and adapt the Article as to ban disseminating false information to disturb public order. This study analyzes critically Minerva case and Court’s interpretation that the Article purports to ban disseminating false information to disturb public order. Conclusively, this interpretation is unconstitutional as well as wrong. The reasons are as follows. Firstly, this interpretation violates nulla poena sine lege by expanding the range of the Article against the original intent of the Article. Secondly, this interpretation violates the principle of proportionality by actually enabling to punish only with disseminating false information. And this interpretation has possibilities to punish constitutionally protected speech or expressions. Thirdly, this interpretation violates the principle of separation of powers by creating new crime without the legislature’s enacting. It is actually judicial legislation. Fourthly, the Article itself is composed of vague and overbroad words, especially ‘the purpose of harming the public interest’. So the Article itself is unconstitutional because it is void for vagueness.

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