[3 KCCR 149, 89Hun-Ma160, April 1, 1991]

A. Background of the Case

In this case, the Constitutional Court ruled that Article 764 of the Civil Act would be unconstitutional if it were interpreted to include notice of apology as "suitable measures to restore [the plaintiff's] reputation."

Prior to this case, the ordinary courts had granted an order of notice of apology together with damages in defamation cases against media agencies. The court's order was pursuant to Article 764 of the Civil Act, which states that "the court, upon motion by the defamed, may order measures suitable to restore the reputation of the defamed, in addition to or in lieu of damages, against a person who defamed him or her." In theories and in precedents, an order of notice of apology had been generally accepted as a representative example of "suitable measures to restore the plaintiff's reputation," and also, it was understood to be enforceable through substitute enforcement. In this case, the Constitutional Court overruled the conventional precedents and theories on the grounds of freedom of conscience and the right to personality.

The plaintiff, a former Miss Korea, brought a civil action against the complainants, Dong-a Ilbo, its President, and the Chief of Editorial of Women Dong-a at the Seoul District Civil Court, claiming monetary damages and notice of an apology for an allegedly defamatory story in the June 1988 issue of Women Dong-a Upon the trial court's denial of a motion challenging the constitutionality of Article 764 of the Civil Act for authorizing notice of apology, the defendants filed a constitutional complaint with the Constitutional Court.

B. Summary of the Decision

The Court held Article 764 unconstitutional insofar as it is interpreted to include the notice of apology as a suitable measure for restoring damaged reputation after elaborating on the nature of freedom of conscience and public apology as follows:

"Conscience" protected by Article 19 of the Constitution includes a world view, a life view, an ideology, a belief and also, even if not rising to the level of the mentioned

above, those valueor ethical judgments in inner thoughts affecting one's formation of personality. Freedom of conscience protects freedom of inner thought from the state's intervention of people's ethical judgment of the right or wrong and the good or bad, and also protects people being forced by the state into making ethical judgments public, hence freedom of silence.

An order of public apology compels an individual admitting no wrong on his part to confess and apologize for his conduct. It distorts his conscience and forces a dual personality upon him by ordering him to express what is not his conscience as his conscience. Therefore, it violates the prohibition against compelling one to commit an act against one's conscience, which is derived from freedom of silence. Therefore, the Court cannot help but find limitation on freedom of conscience (in case of a corporation, forcing its representative to express his fabricated conscience). Furthermore, the right to personality, allowing free development of personality either for a human being or a corporation, is impaired in the process. State-coerced distortion of external personality is necessarily followed by fragmentation in personality.

State-coerced apology is an improper attempt to achieve, through civil liability, the policy goal of satisfying the sentiments of retribution that can only be achieved through a criminal punishment. It is inconsistent with the intent and the purpose of the system set up by Civil Act Article 764, and violates the rule against excessive restriction of Article 37 (2) of the Constitution. That is, the Article 764's goal of restoration of reputation can be achieved by such means as using the defendant's fund to publish civil or criminal judgment against him in newspapers and magazines in general or an advertisement withdrawing the defaming story. Therefore a public apology, which involves imposing coerced expression of one's conscience and other disgraces on the defendant, is an excessive and unnecessary restriction of rights.

C. Aftermath of the Case

The press and the media welcomed the case in their editorials, stressing the negative aspects of public apology. However, focusing on the public responsibility of the mass media and the positive aspects of pubic apology, i.e., deterring abuses of freedom of press, some commentators criticized the decision as being based upon a misunderstanding of the legislative ends behind public apology which, they argued, accords with the legislative ends of Article 264.

As a result of this case, the courts are unable to order a notice of apology as a suitable measure for restoration of damaged reputation. As even critiques agree, this case is significant in giving the practical, normative force to the freedom of conscience and the right to personality, which form the foundation of all intellectual freedoms.

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