지상파 방송광고 판매대행제에 관한 헌법적 검토

On November 27, 2008, the Constitutional Court of Korea made a historic decision of abolishing a monopoly on terrestrial broadcasting advertising sales system, which has run since 1981. The Constitutional Court decided that the provisions of the Broadcasting Act and its decree, which authorize only the Korea Broadcasting Advertising Corporation(KOBACO) and a commercial media representative funded by KOBACO to conduct terrestrial broadcasting marketing business, do not conform to the Constitution as they excessively restrict the freedom of occupational activity. Several bills, which allow commercial media representatives broadcasting marketing business under license, are proposed to amend the current law. This article is aimed to analyse the bills based on the rationale for the KOBACO ruling. At one glance, the KOBACO case seems to be contradictory to the 2003 Constitutional Court case, which ruled that the provision of the Broadcasting Act which delegate the scope of announcement of sponsors permitted for broadcasting business operators to the presidential decree is not unconstitutional. The 2003 case made it clear that the legislators may substantively regulate the organizational and procedural matters concerning establishment and operation of the broadcasting including the choice of broadcasting system and the status of the broadcasting business operators with vast legislative formative discretion. As the broadcasting business operators are entitled to the private right and the constitutional protection within the scope of given under the law, the principle against excessive restriction shall not apply to the freedom of broadcasting case. However, in my opinion, the KOBACO ruling is complementary to the 2003 case. For the freedom of broadcasting shall not violate the constitutional rights of the people such as the freedom of occupational activity, which is the issue of KOBACO case. In other words, the legislative shall have broad discretion only within the scope of matters concerning broadcasting companies. The ordinary people still have their constitutional rights protected even though their rights are related to the freedom of broadcasting. Based on the reasoning above, I reached the conclusion that permitting one commercial media representative along with the public media representative, KOBACO, suggested by two bills might be not in conformity with the Constitution.