국가 안보위해표현범죄의 해석과 ‘명백ㆍ현존 위험 원칙’에 대한 소고 ― 헌법재판소와 대법원 판례를 중심으로 ―

Focusing on the interpretation of the Korean Constitutional Court and the Supreme Court precedents on the criminal expression harm to national security such as Article 7 of the National Security Act, the purpose of this article is to analyze how the “clear and present danger principle” developed by the U.S. Supreme Court was accepted in the practice of Korean constitutional adjudication and precedents, and to examine the nature and function of that principle as a constitutional scrutiny. In particular, it is necessary to examine the diversity of domestic debates and interpretations over the “presence” or “imminence” requirements of “danger” mentioned in the U.S. Supreme Court's Brandenburg standard, which is a modern aspect of the “clear and present danger principle,” and to find an interpretive direction on how to resolve the constitutional tension between freedom of expression and national security. Until now, the Korean Constitutional Court and the Supreme Court have not directly cited the U.S. Supreme Court's clear and present danger principle in case of violation of Article 7 of the National Security Act, but have established their own standards for constitutionality examination. The Constitutional Court and the Supreme Court did not directly apply the principle of clear and present danger as a criterion for constitutionality examination, and demanded substantial and aggressive danger in determining whether certain expressions are repugnant to the Constitution, that is to say, as a balanced interpretation of constitutional legitimacy and legal realism. These standards serve as a practical function of harmonizing the tension between freedom of expression and national security while suppressing the possibility of abuse. In domestic academia, active discussions have been made on whether the “clear and present danger principle” derived from the United States can be accepted in Korea's constitutional soil as a criterion for constitutionality examination. However, the legal status, method of application, and scope of application still require theoretical discussions. These domestic constitutional discussions need to go beyond interpretive differences on how to interpret and apply the principle of clear and present danger, and examine how to adjust the constitutional tension between freedom of expression and national security. In addition, interpretation of crimes that pose a national security danger, such as the National Security Act, goes beyond just whether the standards of the U.S. Supreme Court can be applied to Korea and requires in-depth reflection on how to balance the realistic security situation and the guarantee of freedom of expression under the Constitution. Therefore, a closer look at the current constitutionality scrutiny in Korean precedents and the theoretical validity and practical applicability of the so-called danger presence requirements will provide a clearer assessment of the U.S. Supreme Court's “clear and present danger principle.”