statutory obligation on online service providers (OSPs) to take necessary measures
such as technological measures to disable illegal interactive transmission of original
works upon the request of rights holders and if they fail to meet such obligation
they shall be subject to punishment of a fine for negligence not exceeding
30 million Korean won (KRW). In a 2011 case where a group of OSPs challenged
such provisions, the KCC unanimously held that the said law is constitutional
because it
properly balances interests involved in that, while imposing limited
responsibility to take technical measure on designated OSPs, it cannot
be deemed a significant interference on the freedom of occupation;
public interest in preventing harmful consequences of unlawful trans-
mission of original works for the sake of improving and developing
culture in society and related industry is grave.^52
The right to judicial justice
In 2010 , the KCC struck down Article 19 ( 1 ) prohibiting appeal of a decision
of criminal compensation because of an important public interest to provide reason-
able compensation for those whose personal liberties are infringed. This would
block any appeal of a decision of compensation which may have flaws in fact-
finding or in the measurement of compensation, infringing the essential element of
the right of access to judicial justice guaranteed by Article 27 ( 1 ) of the Constitution.^53
The right to education
Article 31 of the Constitution safeguards the right to equal education according to
one’s abilities. To materialize this basic right, the state must carry out positively an
effective public education system. Free compulsory education is one of the specific
institutions the Constitution expressly articulates to promote the right to education.
In the first decade of the twenty-first century, the KCC experienced several
opportunities to elaborate this provision. For example, the KCC held that
“the constitutional provision regarding free compulsory education is meant to
transfer the financial burden of education from the parents or guardians of
school-age children to the community as a whole, in order to guarantee the right
to receive education more practically.”^54 However, whether all expenses of
compulsory education must be covered by taxation is open to question. In a 2008
case, the KCC ruled that Article 2 , Item 2 , and the main text of Article 5 ( 1 ) of the
(^52) Constitutional Court Decision 2009 Hun-Ba 13 , February 24 , 2011 ,Korean Constitutional
Court Reports, Vol. 23 ,No 1 , Part 1 , 53.
(^53) Constitutional Court Decision 2008 Hun-Ma 514 , October 28 , 2010 ,Korean Constitutional
Court Reports, Vol. 22 ,No 2 , Part 2 , 180.
(^54) Constitutional Court Decision 2007 Hun-Ga 1 , September 25 , 2008 ,Korean Constitutional
Court Reports, Vol. 20 ,No 2 , Part 1 , 412.