언론·출판의 자유와 사전검열금지원칙

The purpose of this Article is to analyze the cases on the doctrine of prior restraint, the freedom of speech and publication, then to examine them in constitutional senses. First, the constitutional definition of the doctrine of prior restraint and its legal characteristics will be reviewed (Ⅱ.). After that, the cases on the requirements of prior restraint will be examined. Lastly, with these case reviews on the basis, the application of the doctrine of prior restraint will be considered in constitutional perspective (Ⅳ.). The current constitutional law has a special clause, article 21, section 2 under the general clause, which is about the restriction on the limitation of fundamental human rights, the constitutional law article 37, section 2. The doctrine of prior restraint stated in the special clause is the exceptional, preferential, and absolute limitation principle that prohibits the administrative power putting the limitation beforehand, on the contents on the freedom of speech and publication. The Constitutional Court had been coherent with the doctrine of prior restraint as it being the principle of limitations until the adjudication of the functional label and the advertisement incident in 2010. Virtually, the major opinion of this case applied more preferential the excess prohibition principle than the doctrine of prior restraint, in judging the application of the doctrine of prior restraint; this resulted in relativizing the doctrine of prior restraint. Such majority opinion should be reclaimed to be in the stance of the earlier precedent which had been abided by. Also the problems that may occur with the unconditional application of the doctrine of prior restraint shall be solved by applying the principle even more consistently, which will demand the legislative and the executive branch to alter the preliminary review done by the “administrative authority,” into a preliminary investigation system by “non-governmental organizations.”