검열금지 법리의 시기 요건에 관한 재검토

According to the established doctrine of prohibiting censorship in Korea, the doctrine can be applied to only “prior”-censorship. Korean Constitutional Court has understood the meaning of “prior” as the time when certain expression is presented or distributed. This understanding is influenced by the doctrine in German and Japan, but in those countries there have been critical discussions about that issue. And currently, we can notice several post-censorship cases that have identical nature and effect with prior censorship. On the one hand, ‘SNI block system’, ‘filtering software’, and ‘the Great Firewall in China’ are prohibitions at the time when certain expression already presented and distributed are being received. These prohibitions can be subject-matter of the doctrine of prohibiting censorship, based on “substantial limitation on access to information” theory or “listener-centered” freedom of expression theories. On the other hand, suspension on ‘comfort women’ statue exhibition, review system for telecommunication, ‘galley censorship’ system in Japanese colonial era are prohibitions at the time after certain expression are received. However, these prohibitions an be subject-matter of the doctrine of prohibiting censorship, according to ‘prior restraint doctrine’ in United States or the fact that regardless of time, ‘prohibition on expression’ is the nature of censorship. The reason why the established doctrine has required time-requisite resulted from the established understanding of legal characteristic of the doctrine, that is ‘absolute principle without exception.’ Therefore, for re-understanding the time requisite of the doctrine, re-understanding legal characteristic of the doctrine, (such as “the doctrine allows balancing test”), is also needed.