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A Limitation of Restriction Freedom of Expression in Cyberspace: An Unconstitutionality of Article 47 Section 1 of Telecommunication Framework Act

  • Public Land Law Review
  • Abbr : KPLLR
  • 2010, 49(), pp.501-530
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

정필운 1

1경희대학교

Accredited

ABSTRACT

This is a study on limitation of the restriction of freedom of expression in Cyberspace. It was Year 2009, when it happened so called ‘Minerva case’. The objectives of this paper are to review and analyze Article 47 Section 1 of Telecommunication Framework Act which was used to prosecute Minerva case from the Constitutional perspective, and critically examine court decision which objects to send a constitutional review. This article is to discuss the dual nature of freedom of expression and the existing discussion on freedom of expression in cyberspace and later to critically examine the target provision, based on the principles of clarity and principle of proportionality, and article 13 of the Constitution from the perspective of the principle of “nullum crimen sine lege”. In conclusion, Article 47 Section 1 is certainly unconstitutional. First, the target clause restricting freedom of expression should contain a clear principle of law and contrary to the principle of the prohibition of excess. Second, the target provision is in a clear violation of the constitutionally settled principle of “nullum crimen sine lege” of clarity. And during these academic discussions on freedom of expression in cyberspace, especially about the cyberspace laws that limit freedom of expression, there is not enough discussion on the constitutional basis of the control of such target provision which limit freedom of expression and this aspect differentiates this paper from other studies.

Citation status

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