형법 제105조 국기모독죄의 위헌성―헌재 2019. 12. 27. 2016헌바96 결정을 소재로―

This article aims to analysis Article 105 of the Criminal Act focusing on the decision of the Constitutional Court of Korea, 2016Hun-Ba96. The Profanation of National Flag Clause, which punishes “a person who damages, removes, or stains the national flag for the purpose of insulting the Republic of Korea”, restricts the freedom of speech based on viewpoint. Punishment provisions being under judicial review, Justices of the Constitutional Court should apply the void-for-vagueness doctrine originated with nulla poena sine lege strictly. And the degree of request for clarity of statutes regulating the freedom of speech is also strengthened. This is especially true for content-based restrictions. Therefore, statutes that restrict free speech based on its subject matter or the viewpoint of the speaker, imposing punishment for the violation, are subject to the most stringent scrutiny. The Profanation of National Flag Clause has used the ambiguous phrase “for the purpose of insulting the Republic of Korea” to stipulate an element of the crime. Consequently, it has failed to set the boundary between permitted and prohibited acts for the regulated. Thus, the Clause infringes the void-for-vagueness doctrine. The level of scrutiny of whether the Profanation of National Flag Clause contravenes the principle of proportionality should be very much heightened, since it restricts the freedom of speech based on viewpoint. It could be acknowledged that the legislative purpose of the Clause is legitimate. However, it lacks a rational connection to the legislative objective, imposing the perspective of the state through the most coercive means of criminal punishment. Furthermore, punishment being a last resort, the Clause infringes the minimal impairment rule. Finally, considering the chilling effect of the Clause, balance between the injurious and beneficial effects has been lost.