변호사 광고의 규제에 대한 헌법소원(2021헌마619)에 관한 분석 - 법문, 그에 대한 해석, 그리고 과잉금지원칙의 적용에 대한 문제 제기 -

Since 2021, the so-called Law Talk case has emerged as a hot issue in legal circles. Young lawyers and the company that operates Law Talk filed a constitutional appeal against the regulation established by the Korean Bar Association for the purpose of regulating the operation of Law Talk. This appeal only concerned the provisions prescribed in subparagraph 1 of paragraph 2 of Article 5 of the Korean Bar Association Regulation. This paper raises a question about the integrity of the Korean Bar Association Regulation, especially in terms of its logical structure. In fact, there seemed to be multiple syntactical errors in the regulation. It was also deemed that the Constitutional Court had failed to point out those syntactical errors in the regulation in a precise and accurate manner. This paper argues that the former and latter parts of the Korean Bar Association Regulation do convey the same meaning. However, based on its judgment that the former and latter parts contained different meanings, the Constitutional Court determined that the former part was unconstitutional, while the latter part was constitutional. This paper argues that both parts must be deemed to be constitutional. The Constitutional Court's judgment was made based on the priciple of prohibition of excessive restriction. The court confirmed the purpose of the legislation without any grounds. In its judgment, the legislative intent of the legislators at the moment of legislation was not considered. Accordingly, its judgment regarding the appropriateness of the methods applied, minimal infringement, and the balance of legal interests was not appropriate. This decision demonstrated how difficult it was to draw a conclusion based on the priciple of prohibition of excessive restriction. It was seemingly the case in which the Constitutional Court made a decision based on the priciple of prohibition of excessive restriction, in reality, the decision was deemed to be made based on the values of the judges involved.