Open Net Korea submitted an opposition statement to the National Assembly on August 14, 2025, regarding the Amendment to the Criminal Act (proposed by Representative Lee Soo-jin, Bill No. 2210281).
This bill expands the scope of criminal punishment to include insults and defamation through statement of facts against deceased persons, which poses a high risk of being abused to block critical public opinion about individuals with clear historical wrongdoings. This bill poses a high risk of suppressing critical expression regarding historical figures and should be withdrawn.
1. Bill Summary
This amendment bill aims to punish the act of insulting the deceased with up to 1 year of imprisonment or detention, or a fine of up to 2 million won (same as the current statutory penalty for criminal insult), those who publicly state facts that damage the honor of the deceased with up to 2 years of imprisonment or detention, or a fine of up to 5 million won (same as the current criminal defamation), and those who damage the honor of the deceased through publications with the purpose of defaming them with up to 2 years of imprisonment or detention, or a fine of up to 5 million won.
2. Criminalization of Insulting the Deceased
A. Unconstitutionality of Insult Laws
Insult laws criminally punish the expression of ‘abstract judgments or contemptuous emotions that may lower a person’s social evaluation’ even without stating specific facts. However, ‘insult’ as a constituent element of criminal offense is an abstract and unclear concept that can vary greatly depending on the judge’s subjectivity, making it difficult for ordinary people and even legal experts to clearly determine what expressions constitute insult. Even looking at several insult crime precedents, it is difficult to find clear standards or consistency for determining whether negative expressions toward others constitute insult crimes. Accordingly, constitutional complaints have been filed multiple times regarding insult crimes, and abolition bills have also been proposed.
Insult crimes, which use the unclear concept of ‘insult’ as a constituent element, violate the principle of legality and clarity, posing a high risk of severely infringing on freedom of expression. Moreover, criminalizing everyday expression acts that are merely individual emotional expressions without any immediate and present danger constitutes a waste of state resources such as investigative power while potentially leaving lifelong criminal records for ordinary citizens, which highly risks violating the principle of proportionality. Additionally, unlike defamation laws, insult laws do not apply grounds for excluding illegality based on public interest purposes, so they are often misused to block critical public opinion against public figures.
Insults under criminal law are legislation subject to ongoing constitutional controversy. The UN Human Rights Committee has declared that criminal punishment should not be imposed for simple opinions or emotional expressions that are not factual claims, and the Special Rapporteur on Freedom of Expression has also pointed this out, yet insult laws directly violate these international standards and recommendations.
B. Expanding the scope of criminal punishment to include insulting the deceased is even more unconstitutional and will suppress critical expression acts toward historical figures
In a situation where current insult laws are already under constitutional controversy, criminalizing the simple expression of negative emotions or use of profanity without specific factual distortion, in order to protect the social evaluation of deceased persons who are not currently engaged in social life, is even more unconstitutional.
Among the deceased who are critically discussed by the public, there are more cases of historical figures with clear historical wrongdoings such as pro-imperialism collaborators and dictators among public figures, rather than disaster victims and celebrities mentioned in the proposal reasons. If insult crimes against the deceased are newly established, there is a high risk that their bereaved families will misuse this provision to block critical public opinion about the deceased. Therefore, citizens’ critical expression acts toward these figures are expected to be greatly suppressed.
3. Criminalization of Factual Defamation of the Deceased
A. Unconstitutionality of Factual Defamation
There is already criticism that Articles 307, Paragraph 1 and 309, Paragraph 1 of the Criminal Act infringe on freedom of expression and suppress various social injustice reporting activities such as the #MeToo movement because they allow criminal punishment even when telling the truth. As four justices pointed out in the recent Constitutional Court’s constitutional decision on the above provisions (Constitutional Court Decision 2017Hun-Ma1113, 2018Hun-Ma330 (consolidated) En Banc Decision, February 25, 2021), it is the foundation of democracy for communities to freely form opinions and public sentiment through discussion and deliberation based on truthful facts, and it is difficult to view false and exaggerated reputations formed while truthful facts are concealed as legal interests that must be protected even while causing a chilling effect on freedom of expression. Even if there is a possibility of being acquitted under Article 310 of the Criminal Act in future trial procedures, the chilling effect on expression acts is severe due to the existence of this provision and the uncertainty of proving public interest. Since stating truthful facts is generally not viewed as an act negatively evaluated by the legal order, and what is damaged by stating truthful facts is merely false reputation based on incorrect or exaggerated facts, factual defamation acts cannot be viewed as acts with sufficient wrongfulness and harmful consequences to warrant criminal punishment. Considering these points, the unconstitutionality of this provision is severe. Accordingly, amendment bills have been proposed to make defamation crimes subject to complaint to prevent abuse of third-party accusations and to add the subjective element of “purpose of defamation” to the constituent elements of defamation crimes.
B. Expanding the scope of criminal punishment to include factual statements against the deceased is even more unconstitutional and will suppress critical expression acts toward historical figures
As with the insult crimes against the deceased examined earlier, in a situation where the unconstitutionality of factual defamation crimes is at issue, making criminal punishment possible even in cases without specific factual distortion regarding the deceased is highly unconstitutional.
The malicious posts about victims of social disasters mentioned in the proposal reasons for this amendment are mostly cases where false facts about the deceased are at issue, so it is difficult to see that there is a legislative gap. On the other hand, the chilling effect that would result from establishing new provisions punishing factual defamation against the deceased is expected to be severe.
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