보도사진의 초상권침해와 알권리에 관한 연구 : 법원의 판례분석을 중심으로 = (A) Study on Infringement of Photo Journalism on People's Figure Right and People's Right to Know : Focused on the Judicial Cases of Court

다국어 초록 (Multilingual Abstract)

As journalism becomes more and more visualized, more photos are used for printed materials, and therefore, photo journalism becomes more influential socially.
Since a newspaper news covers an event of the human community, figure photos must account for a considerable portion of photo journalism. As an independent news source, a figure photo seems to be a decisive factor enhancing the reality and vitality of a news provided by newspaper, while newspapers are entitled and obliged to deliver the visual information to their readers.
However, such a right of journalism to report about the events for public welfare and interests may conflict frequently with individuals' liberty and personal rights.
In other words, a photo journalism may tarnish individual's honor or infringe on his or her privacy, which may result in infringement on his or her property right or credit right. Then, there will exist a conflict of legal interests between individual's human right and freedom of speech and publication.
Under such circumstances, this study was aimed at analyzing the cases of infringement of photo journalism on people's figure right to determine their types and causes, and thereupon, exploring the ways to fundamentally resolve the conflicts between people's right to know and their figure rights.
To this end, concepts and legal backgrounds of figure right and people's right to know were reviewed.
The fundamental cause for the conflict between right to know and figure right may be reduced to the conflict between the fundamental rights guaranteed by the Constitution. Since both of these two legal interests cannot be ignored, the conflict between them seems to be inevitable. In order to resolve such a conflict, were suggested such principles as equilibrium between interests, harmony of norms, and order of priorities. These principles dictate that we should compare the interest gained from protected freedom of journalism with that from limited freedom of journalism when we face a specific situation.
The cases where the freedom of journalism may override the figure right or privacy may be reviewed in reference to such theories as right waiving, public interest and value of journalism, and public existence.
This study reviews two cases guaranteeing the freedom of journalism to a maximum degree. The former case relying on illegality indemnity theory specified that "a journalist who reported about an event truly to the public interests shall not be punished", while the latter case relying on considerable reason theory specified that 'if it can be justified that a journalist believed in the truth of an event, he or she shall be exempt from punishment".
In addition, in consideration of our conditions, the cases where the figure right may be limited are divided into 4 categories: figure right holder's consent, public figures, reports about crime, and reports about gathering or demonstration.
On the other hand, judicial cases about infringements on figure right and conditions for the infringements were reviewed and analyzed, while types of the infringements were divided into 5 categories: unconsented photographing, unconsented publication, secondary infringement, variations during production, and distorted interpretation. In addition, the judicial cases were divided by types, and thereby, their frequencies were examined by period, type, and figures' social status, while the ratio of the cases where newspaper companies won was analyzed. Besides, conditions for infringement on figure right as well as for limited figure right were presented in diagrams.
The reform measures to resolve the conflict between figure right and freedom of journalism can be suggested as follows;
First, it is urgent to enhance the ethics of journalism and journalists as professional news producers armed with a sense of mission.
Second, it is required of the individuals to appeal to the authority for their infringed right in order to check the supra-legal behaviors of journalism and thereby, enhance their human rights with an improved legal sense of rights.
Third, in terms of social and legal reforms, it is necessary to organize a court devoted to the lawsuits about journalism, and at the same time, make efforts to remedy the infringements on figure right through an autonomous jury of journalism.
After all, the infringements of photo journalism on individuals' figure right should be settled in a way striking a harmony among journalism, individuals and legal or institutional procedures. Then, photo journalism will be freely distributed, while individuals' figure right be protected appropriately with minimized infringements on figure right.

목차 (Table of Contents)

• 목차 = i
• 제1장 서론 = 1
• 제1절 연구의 목적 = 1
• 제2절 연구문제 및 연구방법 = 4
• 1) 연구문제 = 4
• 2) 연구방법 = 5
• 제2장 보도사진과 초상권의 관계에 관한 이론적 고찰 = 7
• 제1절 보도사진과 초상권의 정의 = 7
• 1) 보도사진의 개념과 특성 = 7
• 2) 초상권의 개념과 법적 배경 = 9
• 3) 인격권으로서의 초상권 = 13
• 4) 재산권으로서의 초상권 = 14
• 제2절 알권리와 초상권의 상호관계 = 16
• 1) 알권리의 개념 = 16
• 2) 알권리의 법적 근거와 기능 = 17
• 3) 알권리와 초상권의 갈등 = 19
• 제3절 초상권의 침해유형과 제한적 적용 = 25
• 1) 초상권침해의 기준과 유형 = 25
• 2) 위법성 조각사유(違法性助却事由)와 그 상당이유론 = 30
• 3) 초상권의 제한적 적용과 언론보도에서의 면책 = 33
• 제3장 초상권 침해의 유형별 판례 분석결과 = 39
• 제1절 판례수집 = 40
• 제2절 판례분석 = 40
• 1) 분석의 틀 = 40
• 2) 초상권 침해의 유형 및 판례평석 = 43
• 3) 피해자의 사회적 지위와 승·패소 결과 = 70
• 제4장 결론과 제언 = 75
• 제1절 연구요약 = 75
• 제2절 결론 = 76
• 제3절 연구의 제한점과 제언 = 80
• <참고문헌> = 81
• ABSTRACT = 85