Can publication be banned before it harms reputation? Supreme Court Decision 2003Ma1477 and the 'strict and clear conditions' for prior restraint

Question

Reputation is the objective evaluation a person receives from society in respect of character, conduct, standing and credit. Where an unlawful act injures it, the Civil Act gives damages under Article 751 and, on the victim's request, an appropriate measure for restoration of reputation under Article 764. The question is whether these are the only remedies, or whether the victim may invoke reputation as a personality right to have a continuing infringement excluded and a future one prohibited, and, if so, when such relief may be granted against speech or publication before it happens.

Decision 2003Ma1477 raises the question on an application for a provisional injunction by Creditor Church against Debtor 1, who criticised the church in a book, and Debtor 2, who bound the book. The creditor sought to bar the publication and sale of the book. The lower courts refused the injunction, and the case came before the Supreme Court on the further appeal of the creditor.

Material to check

The statutes are Article 751 of the Civil Act, under which a person who harms another's body, liberty or reputation, or otherwise causes mental suffering, is liable for non-pecuniary loss, and Article 764, under which, on the victim's request, the court may order an appropriate measure for the restoration of reputation instead of, or together with, damages. The decision cites Article 300(2) of the Civil Execution Act, which permits an injunction to provisionally determine a temporary status in a disputed legal relationship where it is necessary to avoid conspicuous harm to the continuing legal relationship, to avert an urgent danger, or for other necessary reasons, together with Article 21 of the Constitution; the reasons also refer to Article 304 of the Civil Execution Act. The current text of Article 764 records Constitutional Court Decision 89Hun-Ma160 (1 April 1991), holding that including an apology advertisement in the 'appropriate measure for the restoration of reputation' is unconstitutional; that point is not at issue here.

The decisions are Decision 2003Ma1477 (17 January 2005), on a provisional injunction against publication; Decision 96Da17851 (24 October 1997), on the meaning of reputation under Article 764, on the preventive claim to stop or prevent an infringement of a personality right, and on a case in which a school corporation's book did not injure the reputation of the founding clan; and Decision 2001Da53387 (27 February 2004), which Decision 2003Ma1477 cites for the proposition that, where protection of individual reputation as a personality right collides with freedom of expression, careful constitutional consideration is needed in deciding when the conduct may be regulated. Decision 2003Ma1477 also cites Decision 93Da40614, 40621, whose text could not be opened.

Possible readings

On the first reading, from the decision's holding, reputation is, like a property right, an exclusive right. A person whose reputation has been unlawfully infringed may claim damages under Article 751 or a measure for restoration under Article 764, and may in addition, on the basis of the personality right of reputation, seek from the wrongdoer the exclusion of an infringement now being carried out or the prohibition of an infringement likely to arise in the future. Decision 96Da17851 states the same preventive claim as a matter of the right's nature, since after infringement money or restoration measures alone cannot fully repair the harm.

The second reading concerns the limits where the infringement comes from speech or publication. The decision holds that prior restraint of expressive conduct is allowed only where strict and clear conditions are met, because Article 21(2) of the Constitution guarantees freedom of expression and prohibits censorship. A ban on the publication and sale of printed matter is such prior restraint, and where its object is the evaluation or criticism of a religious body, prior restraint must in principle not be allowed. Exceptionally it may be allowed where the content is not true, or where the matter is one of public interest and its purpose is not solely the public benefit, and where there is a risk of serious, conspicuous and hard-to-repair harm to the victim: in such a case the expression plainly does not outweigh the victim's reputation and the need for prohibition as an effective and appropriate remedy is made out.

A third reading is procedural, and follows from the decision's reasons. An injunction ordering prior restraint is an injunction to provisionally determine a temporary status, so in principle the court should hold a hearing date or an interrogation date at which the debtor can attend, and give an opportunity to argue and prove the truth of the content. Only where holding such a date would defeat the purpose of the application may the court exceptionally decide without that procedure (Article 304 of the Civil Execution Act), and whether such exceptional circumstances exist must be judged more carefully than in an ordinary injunction to determine a temporary status, given the gravity of prior restraint of expression.

What the decisions held

Decision 2003Ma1477 dismissed the further appeal and ordered the creditor to bear the costs of it. The Seoul High Court, in its decision of 29 July 2003 (2003Ra362), had upheld the first-instance decision dismissing the application: it found that Debtor 1 had made the criticism of the creditor stated in that decision in the book and that Debtor 2 had bound the book, and held that Debtor 1's criticism was expressive conduct of religious criticism and so not unlawful, that Debtor 2's binding was likewise not unlawful, that there was no prima facie showing of the right to be preserved, and that the need for preservation was lacking because prior restraint of freedom of expression should be allowed only exceptionally.

The Supreme Court examined the record and the lower decision's reasons. It said those reasons were somewhat inadequate or not entirely apt, but that the ruling could also be read as meaning that there was insufficient prima facie showing that the content of the criticism stated in the decision, which Debtor 1 made of the creditor through the book, was not true or was not solely a matter of public benefit. Reading the ruling that way, the outcome was correct and free of the alleged misunderstanding of the law on the right to be preserved and the need for preservation in an injunction banning the publication and sale of printed matter. The Court thus decided on the adequacy of the showing, not on whether the criticism was in fact untrue.

In its reasons the Court also stated the two rules summarised above: that a person whose reputation is unlawfully infringed may seek exclusion of a current infringement or prevention of a future one, and that prior restraint of publication is exceptional and requires the substantive conditions and the procedural safeguards it sets out. It referred to Decision 2001Da53387 for the need for careful constitutional consideration where reputation and freedom of expression collide, and to Decision 96Da17851 and Decision 93Da40614, 40621.

Points left open

The decision states the facts on which the exception to the hearing requirement under Article 304 of the Civil Execution Act may be used, namely that holding such a date would defeat the purpose of the application, but it does not say what showing suffices for it. It states that the question must be judged more carefully than for an ordinary temporary-status injunction, but leaves the standard to later cases, and it does not decide whether the truth of the content in the book before it was or was not established, since it affirmed on the ground that the prima facie showing was insufficient.

The decision also leaves open how far its limits reach. It addresses the evaluation or criticism of a religious body and treats it as subject in principle to the no-prior-restraint rule; it does not say whether the same applies to other subjects of criticism, whether the substantive conditions it lists are exhaustive, or whether the binding of a book by a party such as Debtor 2 is itself expressive conduct or an act of publication covered by the same rule.

When to reconsider

We revisit this brief if a later Supreme Court decision states when the exceptional procedure of Article 304 of the Civil Execution Act applies to prior restraint or sets out the value-balancing for cases not involving a religious body.

We also revisit it if Article 21 of the Constitution or Article 751 or Article 764 of the Civil Act is amended, or if the Constitutional Court revisits Decision 89Hun-Ma160.

Statutes referred to

• 민사집행법 제300조
• 민법 제751조, 제764조
• 헌법 제21조

Decisions referred to

• 대법원 2005. 1. 17. 자 2003마1477 결정 · Decision ledger
• 대법원 1997. 10. 24. 선고 96다17851 판결

Verification status

All texts below were read at the National Law Information Center (law.go.kr) on 24 October 2026: the decision in its published holdings, summary and reasons, the current text of the articles it cites, and the published holdings and summaries of the precedents opened. The number of one cited precedent, 93Da40614, 40621, is given because its text could not be opened.