Criminal Law Governance of Cyber Violence under the Division of Public and Private Spheres

The criminal law is less restrictive with regard to cyber violence that violates the private sphere. In the cyber society, individuals are powerless to resist aggression not only by subjects of public power, but also by subjects of private power. In order to ensure that public power is always exercised within the boundaries of the law, a distinction should be made between the extent to which criminal law intervenes in the public sphere and the private sphere. Criminal law should actively intervene in cyberviolence in the private sphere, which seriously jeopardizes social order, and apply the public prosecution procedure. Criminal law should be applied with caution to cyberviolence involving the public nature of public figures, while for cyberviolence involving the private nature of public figures, it is necessary to strengthen the protection of criminal law. The “victim vulnerability theory” and the “victim imperfection theory” are both out of focus with regard to cyberviolence. The process of determining the “aggravating circumstances” of online defamation should be a substantive judgment process that takes into account all factors, of which moral damage is one.