자유권의 넓은 보호영역 이론

This article deals with the scope of protection zone of freedom, which is related to the first step of constitutional review of fundamental rights. The way of interpreting the scope of protection zone is very important regarding the possibility of proceeding to next step. In this, the Korean Constitutional Court’s change of decision in 2009 is worthy of notice. The court excluded ‘obscene expression’ from freedom of expression in 1998, but decided that such expression could be protected by the freedom of expression in 2009. The former decision stands for the narrow interpretation of protection zone of freedom of expression and the latter the broad interpretation of it. It is basically right that the scope of protection zone of freedom should be interpreted broadly. If we follow the theory of narrow interpretation of the scope of freedom, related individual’s behavior is likely to be excluded from that scope. It leads to disadvantageous effect in regard to the intensity and standard of review, separation of powers, constitutional principle of best protection of freedom. On the other hand, against the theory of broad interpretation of the scope of freedom could be discussed critically in some perspectives: devaluation of constitutional freedom, weakening of legislative function, and overexpansion of the jurisdiction of the Constitutional Court. However, this article shows that these critical points are less persuasive. This article ends with the conclusion that the theory of broad interpretation of the scope of freedom is more effective to protect the individual’s freedom in the Constitution in the perspectives of the nature of freedom, the constitutional system of protection of freedom, subsidiary character of general freedom, and the benefit of multi-steps of constitutional review for the party involved.