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A Study of Constitutional Court’s Decision (2011Hun-Ma659․683(consolidated)) on the Internet Game Shutdown System in Youth Protection Act - Focused on the Application of the Principle of Proportionality -

  • DONG-A LAW REVIEW
  • 2019, (84), pp.37-76
  • DOI : 10.31839/DALR.2019.08.84.37
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : June 30, 2019
  • Accepted : August 23, 2019
  • Published : August 31, 2019

Park Gyung Chul 1

1강원대학교

Accredited

ABSTRACT

This paper critically reviewed the Constitutional Court's decision (2011Hun-Ma659․683(consolidated)) on the Internet Game Shutdown System in the Youth Protection Act(YPA) from the viewpoint of application of proportionality principle. The Principle of Proportionality requires that the means of restricting the basic rights of citizens chosen by legislative power for public interest be in a proper proportional relationship with the purpose of restricting the basic rights. The principle of proportionality is subordinate to the legitimacy of the purpose, the adequacy of the method, the minimum of infringement, and the balance between public and private interests. Despite of its validity and logic, the proportionality principle has the problem that there is plenty of room for the judge's subjectivity or prejudice to be involved in application to specific cases, It is believed that the Constitutional Court's decision(2011Hun-Ma659․683(consolidated)) clearly shows this problem. According to the current Internet game shutdown system in YPA, all Internet games that are allowed to be used by teenagers under 16 years of age through the game grade classification system are banned from being provided and used for teenagers under 16 years of age, regardless of whether they are at risk of game addiction or addiction, at late-night, even if their parents allow them to use it. I believed the Constitutional Court judged on the basis of the conviction of the necessity of shutdown system of internet games during late-night hours that the current Internet game shutdown system in YPA meets the legitimacy of the legislative purpose, the appropriateness of the method, the minimum of the infringement and the balance of the legal interests without persuasive argument. When the Constitutional Court arbitrarily reviews whether the public power, which limit basic rights of citizens, complies with the principle of proportionality, it should be noted that the proportionality principle can be reduced to a means that justify unconstitutional restriction of basic rights made on the basis of the will or public sentiment of those in power in the name of public interest realization.

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