헌법상 예술의 자유와 예술가의 권리

Modern society is more diverse and creative than any other era in the past. The era of a handful of talented people working as artists through the media, the most representative of which are rare resources such as broadcasting and newspapers, is now passing. As a prosumer, anyone can create artworks that express his or her own personality through artistic expression and conduct artistic activities by unveiling them online. These activities contribute to the establishment of a sense of community and identity as a whole society by forming a consensus among members of society at the same time as the individual’s character development in a narrow way. In this respect, the state must faithfully carry out the constitutional principle of promoting culture through art. It is not easy to define the concept of art. However, as Article 22 of the Constitution of the Republic of Korea guarantees freedom of art, it is an indispensable issue in establishing a protected area of artistic freedom, at least from a legal point of view. First, Article 22 of the Constitution protects freedom of art, and the constitutional protection of freedom of art can be ensured by not denying nor passively defining the concept of art. Second, art has vitality beyond time and space, so we should refrain from viewing a specific form or framework that is popular in any particular era as the concept of art. Third, art is the autonomous act of human consciousness. Therefore, it is difficult to grasp that art is without human conscious action. It is in this context that Kenneth Clark distinguished “nude” from “naked,” where the latter simply refers to the state of not wearing clothes, whereas the word “nude” implies the image of the body reformed, aside from the long-standing controversy over whether a certain artwork qualifies as either obscenity or an art. In the recent controversy over whether a work created by an artificial intelligence is truly art, many viewed that such works created by an algorithm may not be considered as art because artificial intelligence itself cannot be seen as a work of the self-conscious mind. Fourth, art should be identified as an homage to the subject made by one’s own autonomous decision-making without being subjugated to anyone. In other words, art assigns a new meaning and reconstructs the existing homage based on the aesthetic perspective of human. Fifth, art as a constitutional concept is recognized within the scope of constitutional order, meaning that not all human creations of the conscious mind are recognized as art, but rather those that are admitted within the scope of constitutional order are recognized as art. In other words, a work having value as an art can be included in the concept of art that is afforded constitutional protection. Sixth, when it is unclear whether to include in the concept of art, a judgment must be made not by the judiciary, a state-run agency, but by the proposition that “in case of doubt, by the concept of art,” in a way that extends and reinforces the protection of freedom of art under the Constitution. The State shall formulate and enforce various policies for the realization of these cultural state principles. However, the implementation of policies for the realization of a cultural state should not be made at the discretion of the nation. If the implementation of a policy for the realization of a cultural state is left to the discretion of the nation, it will have no choice but to follow in the footsteps of history where a policy often degenerated into one that is only beneficial to one nation or a specific group. After all, the legislation and enforcement of the nation’s policy to realize the principle of cultural state has to pursue co-prosperity through the coexistence of the state and culture. To this end, the state must shape and enforce its policies in accordance with the standards of neutrality, diversity, complementarity, and decentralization. The state is forbidden from providing specific and individual financial support or giving preferential treatment to a particular group or artists over ordinary citizens. The freedom of art in our Constitution basically has the character of freedom, and even if it has the character of an objective value order, support for artists against the principle of equality in the Constitution is constitutionally unjustified.