[영문판례]
Television Broadcast Receipt FeeCase
(11-1 KCCR 633, 98Hun-Ba70, May 27, 1999)
A.Background of the Case
In this case, the Court reviewed Article 36 (1) of the KoreanBroadcasting System Act that allowed the board of the Korean Broad-casting System (hereafter, KBS) to set the amount of the broadcastreceipt fee without any resolution or intervention of the NationalAssembly but merely by obtaining the approval of the Minister ofPublic Information, and found it nonconforming to the constitutionalprinciple ofstatutory reservation.
The complainant sought in a court cancellation of the broadcastreceipt fee and requested constitutional review of Article 35 and otherprovisions of the Korean Broadcasting System Act for reasons of vio- lation of the principle ofstatutory taxation. When denied, he filed a constitutional complaint with the Court.
B.Summary of the Decision
The Court first found Article 36 (1) of the Korean BroadcastingSystem Act unconstitutional but held it nonconforming, citing theproblems that may arise from a simple decision of unconstitutionality:
One of the basic principles of the Constitution is the rule of law. The rule of law centers around the principle ofstatutory reservation.Today, it is insufficient to require all administrative actions limitingpeople's liberties and rights or imposing obligations to be merelybased on a statute (statutory reservation)1). The principle requiresthat all essential issues having fundamental significance to people, andespecially those concerning the realization of their basic rights, bedecided by the legislature itself (parliamentary reservation).2)
The television broadcast receipt fee is aimed at creating finan-cial resources for the specific public utility, i.e. publicly managedbroadcasting. It is a special contribution fee imposed only on thosewho own television sets. Its imposition and collection is an admin-istrative act that limits people's right to property. The amount ofthe fee, together with the scope of the fee-payers, is an essential el-ement, and directly affects the interest of the majority of the people.Also, television
broadcasting is an indispensable element in freedomof press and realization of democracy and a deciding factor in forma-tion of public opinions. It profoundly influences the development ofpolitical and social democracy. The receipt fee is the principal finan-cial source for the KBS and therefore an essential and important is- sue to be decided in realizing the freedom of broadcasting.
Therefore, the amount of the fee must be determined by the leg-islature itself. Article 36 (1) delegates the determination entirely tothe KBS and the Government, in violation of the principle ofstatutory reservation. However, a simple decision of unconstitutionality will cutoff the revenue of KBS and threaten its existence, causing a socialdisruption and profoundly undermining people's right to know. Since collection of the fee is not in itself unconstitutional, temporary conti-nuation of the fee collection does not cause major infringement onbasic rights.
For this reason, the Court finds the provision nonconforming tothe Constitution and requests the National Assembly to cure the defectexpeditiously and leaves the provision effective until such revision.