Restricted Screening Rating Case

[20-2(A) KCCR 20, 2007Hun-Ka4, July 31, 2008]

The Constitutional Court in this case declared that the provisions defining the "restricted screening" rating, Article 21 Section 3 Item 5 of the Promotion of the Movie Industries Act (hereinafter the "Defining Provision") and Article 29 Section 2 Item 5 of the Promotion of the Motion Pictures and Video Products Act, are unconstitutional on the ground that they are against the principle of clarity. The Constitutional Court also ruled that the latter part of Article 21 Section 7 of the Promotion of the Movie Industries Act referring to Article 21 Section 3 Item 3 delegating the standards of rating to the Media Rating Board's regulation (hereinafter the "Delegation Provision") is unconstitutional since it violates the rule against blanket delegation.

Background of the Case

1.The World Cinema Corporation, on September 18, 2005, applied for the classification of the movie 'Battle in Heaven' (hereinafter the "Movie") directed by Carlos Reygadas to the Media Rating Board. The Media Rating Board on November 24, 2005, rated the Movie 'restricted screening' since the Board found that 'the movie depicts unfiltered real sexual intercourse and unprecedented explicit scenes by showing oral sex, explicit exposure of sexual organs, closure scene of erected penis, public hair exposure in the picture of Jesus, and naked man and woman lying down.

2.On February 28, 2006, the World Cinema Corporation filed an administrative suit to the administrative court, asking for cancellation of the restricted screening rating. In addition, on May 13, 2006, it filed a motion for request for an adjudication on constitutionality of the Defining Provision and the Delegation Provision of the Promotion of the Movie Industries Act (hereinafter the "Movie Act") and the court granted this motion and requested the Constitutional Court for review of constitutionality.

3.Meanwhile, on April 28, 2006, National Assembly abolished the Movie Act and newly enacted the Promotion of the Motion Pictures and Video Products Act (hereinafter, "MPViA") by Act no.7943, combining movie and video together. This law encompasses the provisions regulated by the Movie Act.

Summary of Decision

The Constitutional Court ruled, in a 7 (incompatible with the Constitution 6, unconstitutional 1) to 2 (constitutional) opinion, that the Defining Provision and the Delegation Provision are unconstitutional, as the statutes are against the principle of clarity and the rule against blanket delegation. The reason for its decision is as follows.

1. Opinion of Incompatible with the Constitution by Four Justices

A.The Defining Provision states that the movie rated as 'restricted screening' rating is a movie that needs certain limitation in showing and advertising. This provision stipulates with regard to the regulation applied to the movie after such movie has been rated 'restricted screening', rather than defining what 'restricted screening' rated movie is. Thus, by this provision, one cannot figure out what movie would be rated 'restricted screening', and therefore the Defining Provision of the Movie Act is against the principle of clarity.

B.In addition, the delegation provision delegates the specific criteria of the movie classification to the Media Rating Board. What is delegated under this provision is standard of restricted screening rating which does not change so rapidly in accordance with the society, does not require any specialty, nor does it involve a matter of technicality. Furthermore, the matter is not of any de minimis, since it is related with the limitation on the freedom of expression. Nonetheless, the Delegation Provision delegates specific standards to the Media Rating Board's regulation. Therefore, such delegation itself is in violation of the principle against blanket delegation. Moreover, the Delegation Provision authorizes the Media Rating Board to make a regulation for the standard of screening rating, without providing any criteria thereof.

With this provision, one can not figure out the criteria of the restricted screening rating, nor can he know what matters have been delegated even with other related provisions. Thus, the Delegation Provision is in violation of the rule against the blanket delegation.

C.Article 29 Section 2 Item 5 MPVA, a revised provision of the Defining Provision of the Movie Act, still provides the restricted screening rating as identical to the Movie Act. Thus, this provision of MPVA is likewise against the principle of clarity on the same grounds.

However, if the provisions at issue in the instant case are held unconstitutional, and thereby lose their effects immediately, the legal vacuum would occur. In order to prevent such state of vacuum, this Court holds that the provisions at issue as incompatible with the Constitution. The Article 29 Section 2 Item 5 of MPVA shall be tentatively applied until the legislature amends the law by December 31, 2009. The provisions of the Movie Act being still effective to the case at hand, shall cease to apply and the administrative court shall wait until the provisions of MPVA are amended and apply such amended law.

2. Opinion of Incompatibility with the Constitution by Two Justices

With regard to the Delegation Provision, we have different opinion from the majority opinion in reasoning.

Our Constitution specifically lists presidential decree, prime ministerial ordinance, ministerial ordinance, Supreme Court regulation, Constitutional Court regulation, and National Election Commission regulation as a definite list of orders which may become enforceable by the delegation of Acts. Our Constitution being an entrenched rigid constitution, does not allow Acts or other decrees to make an exception to such constitutional principle. Although the criteria for the restricted screening rating is a regulative matter that affects tremendously to the freedom of expression, the law delegating such criteria to the regulation of the Media Rating Board formulates the law of delegation, and thereby is against the principle against blanket delegation.

3. Opinion of Unconstitutionality by One Justice

Movie rated 'restricted screening'shall only be played in limited theaters (Article 29-2 Section 1 of the Movie Act), and playing other movies in such limited theaters is prohibited (Article 29-2 Section 3). The limited theaters cannot be built in the places where general theaters are located. (Article 26 Section 2 of the Movie Act, Article 11-2 Item 6 of the Enforcement Decree of the Movie Act). In addition, such movies cannot be made, sold, or played in videos or other forms of pictures (Article 29-2 Section 2), and the advertisement and promotion of such movies shall only be played in the limited theaters and cannot be done in any other forms (Article 24-2). These provisions are restated in MPVA which has substituted the Movie Act since October 28, 2006.

However, such provisions that substantially prohibit showing of the movie rated 'restricted screening', does not provide the reason for which the restricted screening rating is necessary and the government should regulate the movie rated 'restricted screening'. Hence the provisions with respect to the restricted screening are against Article 22 and Article 37 Section 2 of the Constitution.

4. Opinion of Constitutionality by Two Justices

A.The purpose of the 'restricted screening' system is to provide to adults something to see, as well as to prevent teenagers from being exposed to violent and sexually explicit scenes. Accordingly, the movie rated 'restricted screening' is deemed to be a movie containing too violent, sexually explicit, or immoral scenes that viewing of such renders abomination and harm not only to teenagers but also to adults. Thus, the limitation on theaters allowed of showing, on advertisement or on promotion of such movie become necessary. Therefore, the Defining Provision is not against the principle of clarity.

B.A creative work like movie is a medium very sensitive to social, and cultural environment in which the movie is produced or imported. As it is desirable that the criteria for classification is provided in the legislative form which is able to reflect the condition of times, we do

not find problem in the law delegating this criteria to the Media Rating Board's regulation. However, considering totality of the circumstances, including the legislative purpose of the 'restricted screening' system, and the Article 22-2 of the Movie Act providing for the matters to be included in the regulation of movie classification of the Media Rating Board, the criteria for 'restricted screening' would be that a movie is too violent, sexually explicit, or immoral, if viewed, it would be harmful for not only to teenagers but to adults as well. Hence, the Delegation Provision of this case is not against the principle of blanket delegation prohibition.