Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

Like its counterparts in most liberal democracies, the KCC developed some


criteria by which the constitutionality of any legislation limiting freedom of expres-


sion can be evaluated. Among them, the most frequently used by the KCC is the


rule of clarity (an equivalent of “void for vagueness,” according to US consti-


tutional law).^41 Two representative cases merit attention. In 2008 , the KCC


declared that Article 21 ( 3 ), Item 5 , of the Promotion of Motion Pictures and Video


Act, intended to define the “restricted” category of film that can be shown only in a


specially licensed place, was incompatible with the Constitution because the


definition is too obscure to meet the rule of clarity.^42 In 2010 , the KCC also struck


down Article 47 ( 1 ) of the Electric Telecommunication Act, which criminalizes


those who transmit false communication through electric communication facilities


with the intent to harm the public interest, on the ground that it violates the


principle ofnulla poena sine legeand the rule of clarity. This case concerns a


controversial indictment of an Internet controversialist named “Minerva” whose


economic comments on the financial crisis in 2008 drew dramatic public attention.


The KCC reasoned that the “public interest” is too ambiguous and abstract to


notify ordinary citizens of what purpose of communication, among “permitted


communications,” is prohibited.
43


The most controversial case in this area is theNewspapers Actcase in 2006.


The then president Roh Moo-hyun was a champion of media reform even


before he came into power because he believed that unfair competition in a


media market dominated by monopolized press companies has been a major


cause of a distorted political process in favor of conservative vested interests.


In fact, three major conservative presses, theChosun Ilbo(“Daily”), theJoongang


Ilboand theDonga Ilbo, occupied 60 percent of the press market. The ruling


Open Uri Party managed to pass the Newspapers Act, containing, among


others, two controversial media regulations. First, Article 15 ( 2 ) of the said Act


prohibited any daily newspaper from concurrently running any news agency or


any broadcasting business that performs general programming or professional


programming running news reports under the Broadcasting Act. Second,


Article 15 ( 3 ) of the same Act regulated multiple possession of newspapers by the


dominant stockholder of a newspaper. The KCC ruled that the former prohib-


ition can be regarded as the constitutional exercise of legislative power while the


latter regulation of multiple possession of newspapers was incompatible with the


Constitution because such regulation did not allow exceptional permission of


multiple possession of newspapers that did not hinder the diversity of newspapers


(^41) Constitutional Court Decision 99 Hun-Ma 480 , June 27 , 2002 ,Korean Constitutional Court
Reports, Vol. 14 ,No 1 , 616.
(^42) Constitutional Court Decision 2007 Hun-Ka 4 , July 31 , 2008 ,Korean Constitutional Court
Reports, Vol. 20 ,No 2 , Part 1 , 20.
(^43) Constitutional Court Decision 2008 Hun-Ba 157 • 2009 Hun-Ba 88 , December 28 , 2010 ,
Korean Constitutional Court Reports, Vol. 22 ,No 2 , Part 2 , 684.


90 Kim

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