Import Recommendation System of Sound Records, Video Products, and Game Software Act Case

[17-1 KCCR 51, 2004Hun-Ka8, February 3, 2005]

In this case, the Constitutional Court ruled that the provisions at issue in the Sound Records, Video Products, and Game Software Act requiring those wishing to import foreign video materials to obtain an import recommendation by the Korea Media Rating Board constitute a form of prior censorship and therefore violate the Constitution.

Background of the Case

The Sound Records, Video Products, and Game Software Act ("SVGA"), for the purpose of restricting foreign imports of obscene or violent videomaterials, requires each import of foreign materials to be first recommended by the Korea Media Rating Board ("KMRB") under penaltyof criminal punishment. The requesting petitioner, for this constitutional review, imported and distributed foreign video materials without first obtaining the Korea Media Rating Board's recommendation, and was indicted and fined by the court. The requesting petitioner, on the one hand, appealed to the SupremeCourt, and filed a motion to request for a constitutional review of the provisions of SVGA prescribing the import recommendation system. The Supreme Court requested this constitutional review of those provisions to the Constitutional Court.

Summary of Decision

In an 8 to 1 vote, the Constitutional Court declared the provisions at issue unconstitutional for the following reasons:

1. Majority Opinion of Eight Justices

A.Sections 1 and 2 of Article 21 of the Constitution state that all citizens shall enjoy the freedom of speech and the press and that licensing or censorship of speech and the press shall not be permitted. Censorship here means the inspection of a view or an opinion by the administrative authority before it is expressed, conducted as a preventive measure to judge and assort its contents and to prohibit the expression of an unendorsed opinion. The Constitution directly bans such censorship because it considerably impairs citizens' creativity and originality in their artistic activities. In addition, if censorship is permitted, the administrative authority may only permit to form pro-governmental or harmless public opinions by censoring opinions unfavorable to those in power.

B.SVGA requires each import of foreign materials to be first recommended by the Korea Media Rating Board, which, with the authority to ban import of any materials may not endorse for import the materials deemed obscene andviolent. Also, under the law, anyone distributing or storing for distribution foreign video materials imported without import recommendation will face criminal punishment, and any unrecommended video products may be confiscated for destruction by competent civil servants on behalf of the Ministry of Culture and Tourism.

C.The import recommendation system requires imported foreign video products, expressive materials, to be submitted before publication of that expression - importation and distribution of foreign video products - to the KMRB, characteristically an administrative agency, in view of its structure and composition, and thus enables the administrative authority to decide whether to permit the publication. The KMRB can impose coercive measures such as criminal punishment for violations of SVGA. Therefore, the import recommendation satisfies all the elements of censorship:mandatory submission of an expressive materials for approval; prior

inspection conducted by an administrative authority; prohibition ofpublication of an unapproved expression; and coercive measures to compel the inspection procedure. The import recommendation is thus a form of censorship, which is banned by the Constitution.

2. Dissenting Opinion of Justice Song In-jun

Film, video, and other audio-visual materials, due to their influence and ripple effects, need prior content inspection at the pre-exhibition and pre-distribution stage. The KMRB is a civilian voluntary organization void of administrative coloring. Import recommendation by the KMRB of foreign video materials constitutes a necessary and appropriate prior inspection procedure and does not constitute censorship banned by our Constitution.

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Party

Requesting Court

Supreme Court (Request for Constitutional Review, 2001Cho472, April 13, 2004)

Underlying Case

Supreme Court 2001Do3495, Violation of the Sound Records, Video Products, and Game Software Act

Holding

The part of Article 16 Section 1 pertaining to foreign video products, the part of Article 29 Section 1 Item 4 referring to importation of foreign video products of Article 16 Section 1 and the part of Article 30 Item 5 referring to a person who has distributed or kept imported foreign video products of Article 24 Section 3 Item 2 of the Sound Records, Video Products, and Game Software Act (Enacted by Act No. 5925 on February 8, 1999, and before wholly revised by Act No. 6473 on May 24, 2001) are unconstitutional.

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the case

(1)Requesting petitioner Son ○ Chul conspired with his brother Son ○ Jin, from the early December, 1999 to November 22, 2000, and without the import recommendation from the Korea Media Rating Board (hereinafter, referred to as the "KMRB") imported 600 copies of foreign motion picture DVDs by using websites such as "Amazon.com" and receiving them by mail at his office in ○○ Building in Yeouido-Dong, Yeongdeungpo-Gu, Seoul. He thereafter distributed the foreign video products via his internet homepage. He, in doing so, failed to obtain an import recommendation by the KMRB. The video products were original copies of with obscene, lascivious, or violent scenes from the motion pictures. Since he failed to obtain import recommendation from the KMRB, he was fined of 5,000,000 Won by the Daegu District Court for the violation of the Sound Records, Video Products and Game Software Act (hereinafter, "SVGA") (Daegu District Court, 2000Go-Dan8228).

(2)The requesting petitioner's appeal to the appellate court was dismissed (2001No167), and he appealed to the Supreme Court. While the appeal was pending (2001Do3495), the requesting petitioner filed a motion to request for a constitutional review of Article 16 Section 1 etc., of the SVGA, which provides for the import recommendation procedure administered by the KMRB (2001Cho472). The Supreme Court recognized that the constitutionality of the part of Article 16 Section 1 pertaining to foreign video products, the part of Article 29 Section 1 Item 4 referring to the importation of foreign video products of Article 16 Section 1 and the part of Article 30 Item 5 referring to a person who has distributed or kept imported foreign video products of Article 24 Section 3 Item 2 of the SVGA is a precondition of the judgment of the requesting petitioner's trial, and thus requested this constitutional review.

B. Subject matter of review

The subject matter of review is the constitutionality of the part of Article

16 Section 1 regarding foreign video products, the part of Article 29 Section 1 Item 4 referring to the importation of foreign video products of Article 16 Section 1 and the part of Article 30 Item 5 referring to a person who distributed or kept imported foreign video products of Article 24 Section 3 Item 2 of the SVGA (enacted by Act No. 5925 on February 8, 1999, and before wholly revised by Act No. 6473 on May 24, 2001). The provisions are as follows (hereinafter referred to as the "Instant Provisions"):

[The Instant provisons]

Article 16 (Import of Sound Records, Video Products, or Game Software)

(1) A person who desires to import sound records (including their originals; hereinafter referred to as "foreign sound records"), video products (including their originals, hereinafter referred to as "foreign video products"), or game software (hereinafter referred to as "foreign game software") that are manufactured abroad shall obtain recommendation thereon from the Korea Media Rating Board under Article 17 of the Public Performance Act, except as provided by Presidential Decree.

(2)~(4) Omitted.

(5) The Board shall not make import recommendation on import as prescribed in above (1) on the foreign sound records, foreign video products or foreign game software falling into any of the following Items:

1. Where their contents may be in conflict with the basic democratic principles or may be detrimental to the national prestige;

2. Where they represent violence, obscenity, etc. in such an excessive manner that they may corrupt public morals or disturb social order;

3. Where they so affect adversely the international diplomatic relations or the cultural identity of the nation that they may do harm to national interests.

Article 29 (Penal Provisions)

(1) Any person who falls under any of the following sub-paragraphs shall be punished by imprisonment for a period of not more than five years or by a fine not exceeding 50 million won:

1.~3. Omitted.

4. A person who has imported or manufactured foreign sound records, foreign video products, or foreign game software without obtaining recommendation as prescribed in Article 16 Section 1 or 2.

5.~10. Omitted.

(2) Omitted.

Article 30 (Penal Provisions)

Any person who falls into any of the following Items shall be punished by imprisonment for a period of not more than two years or by a fine not exceeding 20,000,000 Won:

1.~4. Omitted.

5. A person who has distributed the sound records, video products, or game software falling into any of the Items of Article 24 Section 3, or offered them to the public for their viewing or amusement or, to this end, kept and exhibited them.

Article 24 (Closure and Removal etc.)

(1), (2) Omitted.

(3) When sound records, video products, or game software falling under any of the following Items have been discovered, the Minister of Culture and Tourism or the Head of Si/Gun/Gu may direct the relevant public officials to remove and destroy them:

1. Omitted.

2. Sound records, video products, or game software that have been imported, manufactured, or carried in without obtaining recommendation under Article 16 or 17.

3.~5. Omitted.

(4)~(6) Omitted.

[The Related Provision]

The constituting provisions of the KMRB are included as an appendix.

2. Reason for the Supreme Court's Request and the Arguments of the Related Bodies

A. The Supreme Court's reasons for request for this constitutional review

(1)The appellate judgment, preceding the Supreme Court, upheld the decision of the court of first instance which applied the Instant Provisions to the facts of this case - the requesting petitioner importing foreign video products without obtaining the import recommendation and distributing or keeping the unrated foreign video products for distribution. Therefore, the constitutionality of the Instant Provisions is a precondition of the requesting petitioner's trial at the Supreme Court.

(2)Article 21 Section 1 of the Constitution states "all citizens shall enjoy the freedom of speech and the press", and the freedom of speech and the press includes the freedom of expression. Since video products are a means of expression, manufacturing, importing, and distributing them are protected under Article 21 Section 1 of the Constitution.

The KMRB, practically an administrative body, inspects the contents of foreign video products before they are imported, and prohibits import or distribution of foreign video products that fall into Article 16 Section 5 of the SVGA. Moreover, when a person imports or distributes foreign video products without the import recommendation, the person can even be subjected to criminal punishment. Therefore, the import recommendation procedure administered by the KMRB under Article 16 Section 1 of the SVGA is a form of prior censorship banned under Article 21 Section 2 of the Constitution.

B. Arguments of the Minister of Culture and Tourism

(1)The influence of films, due to the characteristic of audio-visual media which appeal to visual and auditory senses, is powerful: once they are shown, their impressions and shock effects are conveyed in a strong and direct manner, and the magnitude of its ripple effect has grown extensive with video equipment being wide spread. Accordingly, there is a certain need for inspection and regulation of films or videos before they are shown, or distributed, because there is no effective means of regulation once they are distributed to consumers.

(2)There is no room for the administrative authority to exercise power upon the composition of the KMRB. The members of the KMRB are primarily selected by the organizations consisting ofbona fidecivilians

from each specialized field, and then the president of the National Academy of Arts recommends them to the President of the Republic of Korea, who then commissions them. Considering the legislative purpose of and the provisions of the SVGA, it is clear that the KMRB is an autonomous civilian entity.

Therefore, the import recommendation procedure, administered by the KMRB, does not constitute a form of prior censorship absolutely banned under Article 21 Section 2 of the Constitution, because only prior inspection conducted by the administrative authority is prohibited, and the KMRB is not an administrative agency, but an autonomous civilian entity.

3. Review on Constitutionality of the Instant Provisions

A. Provisions of the Constitution Related to Ban on Censorship and the Concept of Censorship

The Constitution generally protects freedom of expression under Article 21 Section 1: "all citizens shall enjoy the freedom of speech and the press, and the freedom of assembly and association", and expressly bans any forms of censorship under Article 21 Section 2: "licensing or censorship of speech and the press, and licensing of assembly and association shall not be permitted".

The Constitution expressly bans censorship of the press, but does not specify what form of censorship is banned by the Constitution. In a constitutional review of Article 12, et al., of the Motion Picture Act (93Hun-Ka13 et al., October 4. 1996), the Constitutional Court iterated reasons for banning censorship and outlined the concept of censorship banned under Article 21 Section 2 of the Constitution as follows:

"Sections 1 and 2 of Article 21 of the Constitution state that all citizens shall enjoy the freedom of speech and the press, and that licensing or censorship of speech and the press shall not be permitted. Censorship here means the inspection of a view or an opinion by the administrative authority before it is expressed, conducted as a preventive measure to judge and assort its contents and to prohibit the expression of an un-endorsed opinion. The Constitution directly bans such censorship because it considerably impairs citizens' creativity and originality in artistic activities. On top of that, it may result in the administrative

authority allowing only pro-governmental or harmless public opinions by prior censoring the ones unfavorable to those in power

Article 21 Section 2 of the Constitution declares that restricting the freedom of speech and the press by censorship shall not be permitted even if it is based on a statute, notwithstanding that Article 37 Section 2 of the Constitution states that the freedoms and rights of citizens may be restricted by a statute only when necessary for national security, the maintenance of law and order or for public welfare. Censorship here means anything that practically falls under the concept of censorship stated above, regardless of the term or form.

However, the principle of banning censorship does not prohibit all forms of prior restrictions, but only those prior inspections under which the publication of an expression solely depends on whether it is approved by an administrative authority. Four elements of censorship banned by the Constitution are as follows: mandatory submission of the expressive materials for approval; prior inspection conducted by the administrative authority; prohibition of publication of an unapproved expression; and coercive measures to compel the inspection procedure" (8-2 KCCR 212, 222-223 93Hun-Ka13 et al., October 4. 1996).

In the aforementioned decision, the Constitutional Court introduced four elements - mandatory submission of the expressive materials for approval; prior inspection conducted by the administrative authority; prohibition of publication of an unapproved expression; and coercive measures to compel the inspection procedure - as the guidelines for review of censorship.

The guidelines, presented in the Decision, was adopted in a series of Constitutional Court decisions where censorship was at issue, and in the Motion Pictures Rating Case (13-2 KCCR 134, 2000Hun-Ka9, August 30, 2001), provisions of the Motion Pictures Industry Act concerning the KMRB withholding rating of a film for a certain period were declared unconstitutional because such rating amounts to censorship banned by the Constitution following the guidelines above.

B. History and Contents of the Import Recommendation System

(1) Legislative History

The import recommendation system of foreign video products originated

from the import licensing system of foreign video products stated in the Sound Records and Video Products Act (hereinafter, "SRVA"), enacted by Act No. 4351 on March 8, 1991. Article 13 Section 1 of the SRVA stated that any person importing or carrying in foreign video products or reproducing them for the purpose of sale, lending, or distribution should obtain a license from the Minister of Culture and Tourism, and Article 24 Section 1 Item 2 of the SRVA stated that any person in violation of Article 13 Section 1 should be punished by imprisonment for a period of not more than three years or by a fine not exceeding 20,000,000 Won.

The SRVA was wholly revised by Act No.5016, on December 6, 1995, and the import licensing system administered by the Minister of Culture and Tourism was changed to import recommendation system administered by the Public Performance Ethics Committee, and since then, the distribution of imported foreign video products without obtaining the recommendation was also subject to separate criminal punishment.

The agency administering the import recommendation system was changed to the Korean Performance Arts Promotion Council when the SRVA was revised on April 10, 1997. It was again changed to the KMRB, and the punishment for importing foreign video products without the recommendation, distributing them or keeping them to this end became more severe when the SVGA was enacted by Act No. 5925 on February 8, 1999. The constitutionality of the provisions related to the import recommendation of the SVGA enacted by Act No. 5925 on February 8, 1999 is the subject matter of this review (import recommendation of foreign video products was entirely abrogated when the SVGA was wholly revised on May 24, 2001).

(2) Contents of the Import Recommendation System

Import recommendation system, recognized by the Instant Provisions, can be summarized as follows:

A person who desires to import foreign video products must obtain an import recommendation thereon from the KMRB, and the KMRB may choose not to make such recommendation when the foreign video products fall into certain criteria set by the SVGA and the KMRB. A person should not import or distribute foreign video products without the import recommendation, and criminal punishment is imposed upon any person in

violation of the law.

Judging from the history of the import recommendation of foreign video products and from Article 16 Section 5 specifying the criteria for not granting such recommendation, the legislative purpose of the Instant Provisions is to protect minors and public morals against descriptions exceedingly obscene and violent by pre-inspecting the contents of foreign video products and prohibiting importation or distribution of them if they fall into certain criteria and to regulate foreign video products for the sake of national security and maintenance of order.

C. Whether the Import Recommendation is against the Constitutional Principle of Banning Censorship

(1) Import of Foreign Video Products and the Freedom of Speech and the Press

Article 21 Section 1 of the Constitution states that all citizens shall enjoy the freedom of speech and the press, and the freedom of speech and the press includes the freedom of expression.

The Constitutional Court stated, in several decisions, that "sound records and video products are means of expression and communication as long as they play a role in forming opinions, and therefore manufacturing sound records and video products is thus to be protected under the freedom of speech and press" (5-1 KCCR 275, 284, 91Hun-Ba17, May 13, 1993; 8-2 KCCR 395, 401, 94Hun-Ka6, October 31, 1996).

Importation and distribution of foreign video products are obviously a means of expression and communication in light of their contributions to forming opinions. Therefore, importation and distribution of foreign video products fall within the protected realm of the freedom of speech and the press, and prior censorship of this realm is banned by the Constitution.

(2) Whether the Import Recommendation System Constitutes a Form of Prior Censorship Falls into the Concept of Censorship

Now we need to review whether the import recommendation system, administered by the KMRB, under the Instant Provisions, is a form of censorship banned by the Constitution, which meets all four elements the

Constitutional Court has prescribed as the guidelines of review when examining censorship cases: mandatory submission of the expressive materials for approval; prior inspection conducted by the administrative authority; prohibition of publication of an unapproved expression; and coercive measures to compel the inspection procedure.

(A) Article 16 Section 1 of the SVGA stipulates that any person who desires to import video products manufactured abroad must obtain an import recommendation from the KMRB, and Section 5 of the same Article provides for the guidelines of review in terms of the contents and thereby presenting the video products that the KMRB will not make recommendations upon. Judging from the related provisions and the legislative purpose of the import recommendation, it is unquestionable thatif the expressive materials - foreign video products - are to be domestically distributed, the materials should be submitted to the agency administering the import recommendation procedure before it is being circulated.

(B) The Constitutional principle banning censorship only applies when an administrative authority conducts the censorship as a censoring body. Hence it matters whether the KMRB in charge of administering the import recommendation procedure is an administrative authority.

The Constitutional Court, in the decision of 2000Hun-Ka9 on August 30, 2001, stated the followings in relation to the nature of the KMRB when it reviewed the constitutionality of withholding of film ratings under Article 21 Section 4 of the Promotion of the Motion Pictures Industry Act (wholly revised by Act No. 5929 on February 8, 1999).

"The KMRB, which undertakes the task of reviewing and rating films and holds the power to withhold a rating, does not owe a duty to inform or report to the Minister of Culture and Tourism as the former Public Performance Ethics Committee or the former Korean Performance Art Promotion Council did. However, the members of the KMRB are still appointed by the President of the Republic of Korea (Article 18 Section 1 of the Public Performance Act), and details of composition and procedures of the KMRB are to be stipulated by Presidential Decree (Article 18 Section 2 of the Public Performance Act, Article 22 of the Enforcement Decree of the Public Performance Act). Furthermore, the State may subsidize the KMRB, for its necessary operating costs, from the national

treasury (Article 30 of the Public Performance Act). Considering these facts, it is undeniable that the administrative authority may have the constant influence over the composition of the inspecting body and thus may act as ade factocensorship board. Although the KMRB is an independent organization free from the governmental influence in terms of reviewing and rating activities (Article 23 of the Public Performance Act), it does not essentially matter in determining whether it constitutes a censoring body, since the independence of the inspecting body is a precondition required, as a matter of course, in all kinds of inspection procedures to secure impartiality and objectivity in the inspection procedure and the outcome. Once the inspection procedure is designed and planned in a form of legislation by the State, the fact that the KMRB is composed of civilians and is an independent organization does not alter its legal nature of withholding of film ratings stipulated by the Public Performance Act. Accordingly, the withholding of film ratings by the KMRB of this nature also satisfies the element of censorship - prior inspection procedure conducted by the administrative authority".

The applicable provisions regarding the KMRB were originally stipulated in the Public Performance Act. Then with the amendment on May 24, 2001 the SVGA provided for the KMRB, and there also have been some changes in related provisions. However, the KMRB administering the import recommendation procedure of foreign video products, stipulated by the Instant Provisions, was established under the Public Performance Act before its amendment, and it is identical to the KMRB that the Constitutional Court reviewed and recognized its nature as an administrative agency when it withheld film ratings in the above mentioned decision (2000Hun-Ka9, August 30, 2001).

In conclusion, as pertaining to censorship, the KMRB, in this case, takes the form of an administrative authority in its structure and composition.

(C) Next, let us review whether the instant import recommendation system has other elements of censorship: prohibition of the publication of an unapproved expression and coercive measures to compel the inspection procedure.

According to the SVGA, an import recommendation must be obtained from the KMRB if foreign video products are to be imported for

distribution (Article 16 Section 1), and the KMRB shall not make the recommendation if the contents of the foreign video products fall under certain criteria (Article 16 Section 5). Criminal punishment is imposed on a person who has imported, distributed or keptforeign video products to this end without obtaining such recommendation (Article 29 Section 1 Item 4 and Article 30 Item 5). The Minister of Culture and Tourism, etc., may direct the relevant public officials to remove and destroy imported foreign video products without the recommendation (Article 24 Section 3 Item 2).

Judging from these aspects of the Act, domestic distribution of foreign video products can be completely prohibited if some of the contents fall into certain criteria set by the SVGA and the KMRB, unless the importer voluntarily deletes or modifies the problematic contents. Although on its face it takes a form of 'recommendation', it restricts publication of expressions through foreign video products unless the recommendation is obtained from the KMRB. Therefore, import recommendation system stipulated by the Instant Provisions, actually prohibits the publication of an unapproved expression.

In addition, as import recommendation system of foreign video products, stipulated by the Instant Provisions, is followed by penal provisions and provisions stipulating coercive removal and destruction, it obviously possesses compulsory coercive measures to compel the inspection procedure.

(3) Sub-conclusion

As aforementioned, import recommendation system of foreign video products, stipulated by the Instant Provisions, demands submission of expressive materials before the publication of an expression - importation and distribution of foreign video products - to the KMRB, characteristically an administrative agency, and thus enables the administrative authority to decide whether to permit the publication. Also there are coercive measures such as criminal punishment for people in violation of the SVGA. Therefore, import recommendation is a form ofprior censorship banned by the Constitution, because it satisfies all elements of censorship: mandatory submission of the expressive materials for approval; prior inspection conducted by the administrative authority; prohibition of publication of an unapproved expression; and coercive measures to compel the inspection

procedure.

4. Conclusion

The Instant Provisions are in violation of the Constitution, and the Court declares so by the consensus of all Justices except Justice Song In-jun who writes a dissenting opinion in paragraph 5 below.

5. Dissenting Opinion of Justice Song In-jun

I had an opportunity to express my view with respect to the necessity of pre-inspection of audio-visual materials in my dissenting opinion of the decision (2000Hun-Ka9), mentioned in the majority opinion above, as follows (13-2 KCCR 134, 151-155, 2000Hun-Ka9, August 30, 2001):

"Generally speaking, in the realm of speech and the press, the State can not justify restriction on expression with the mere contention that the expression is without worth or is harmful. The State intervention can only be deemed necessary and justified when the harm resulting from such expression cannot be ameliorated through the marketplace of ideas. Hence, in principle, the state intervention is a secondary solution in the realm of speech and the press.

However, not every expression can be ameliorated by the self-correcting mechanism of the civil society. Some expressions, once published, may cause harm that cannot be ameliorated by the free competition of ideas or may do harm too great to wait for other expressions/ideas to appear in order to eradicate the harm. Such expressions are not protected under the freedom of speech and the press provisions in the Constitution, and the state intervention is allowed as a primary solution in this area.

Article 21 Section 4 of the Constitution states, "Neither speech nor the press shall violate the honor or rights of other persons, nor undermine public morals or social ethics". This can be regarded as exemplifying expressions not protected under the Constitution, while setting a limit of the freedom of expression.

Obscene expressions, defined as 'a naked and unabashed sexual expression which distorts human dignity or humanity and which appeals only to the prurient interest with no literary, artistic, scientific or political value' immensely damage sound sexual morals of the society and their

harm cannot be easily ameliorated through the marketplace of ideas. Hence, obscene expressions are one example of expressions not protected under the freedom of speech and the press.

Accordingly, if a certain expression does not fall into the freedom of speech and the press protected under Article 21 Section 4 of the Constitution, such expression needs to be inspected and filtered, in advance, in an appropriate manner.

The influence of films, due to the characteristic of audio-visual media which appeal to visual and auditory senses, is powerful: once they are shown, their impressions and shocking effects are conveyed in a strong and direct manner, and the magnitude of its ripple effect has grown extensive with video equipment being widespread. Accordingly, there is a certain need for inspection and regulation of films or videos before they are viewed or distributed, because there is no effective means of regulation once they are distributed to consumers. Moreover, there is a serious need to block minors' access to obscene or violent films in advance.

Some contend that withholding film ratings is not directly related to the public interest in the protection of minors since there already is a film rating system and therefore minors' access to harmful motion pictures is blocked. Such contention is overlooking the magnitude of the gap between statutory regulation and its execution in practice. Besides, the public interest in the protection of minors still retains a significant meaning at present when several films of different ratings are shown in the same theater".

Today, video equipments are widely distributed and almost all films are repeatedly reproduced as video products. Therefore, the necessity of pre-inspection of video products is no less than that of films, considering their influence and the ripple effect. Rather, the necessity is greater, judging from the following reasons:

Since films are shown in a confined space, i.e., a movie theater films rated for "Restricted Showing" can be restricted to be shown solely in the movie theaters for Restricted Showing films only theatres, and their advertisement restricted to be commenced or distributed only in these theatres. This enables access control of the users and regulation pertaining to the protection of minors, etc., effectively at the distribution stage. On the contrary, controlling video products, at the distribution

stage, is comparatively harder because video products can be easily accessed by any person at anytime and anywhere. Therefore, the necessity of pre-inspecting their contents prior to showing and distribution is much greater than that of films. Particularly in the case of foreign video products, it is impossible to bring criminal prosecution against manufacturers for the contents of videos even though the video materials often contain excessively profane or violent scenes that might cause emotional distress to minors. Given these facts, it is highly necessary to prevent indiscreet importation of foreign video products and circulation of them to minors.

Moreover, recent rapid development of the Internet has accelerated the circulation speed at an unimaginable rate, and if video products containing illegal materials are circulated via the Internet, it would apparently result in extremely serious harm. A good example of this is a recent scandal of a secret file about entertainers. The file has been illegally spread over the Internet and that has brought on much public criticism.

In the 2000Hun-Ka9 decision, referred to above, I also mentioned the nature of the KMRB in charge of making import recommendation of foreign video products: "the KMRB is an autonomous civilian entity independent from the administrative authority, as it was established without the administrative coloring found by the decision of the Constitutional Court that determined the nature of the Public Performance Ethics Committee and the Korea Performance Arts Promotion Council as the administrative authorities and adjudicated that they were censoring bodies". The reasons are as follows: Firstly, the prospective members of the KMRB are selected by organizations consisting ofbona fidecivilians from specialized fields. Then the President of the National Academy of Arts recommends them to the President who then, as a formality, commissions them; secondly, unlike the past KMRB, the KMRB is not accountable for the report to the Minister of Culture and Tourism on the inspection result and the KMRB does not need to seek for the approval of the chairman and the vice chairman from the Minister of Culture and Tourism; thirdly, the chairman and the vice chairman of the KMRB are mutually elected from among the members of the KMRB, the members of the KMRB do not receive any instructions or intervention in the exercise of their duties during their terms of office, and no member of the Board may be removed from office or suffer unfavorable treatment in his status

against his will; lastly, the subsidy for the KMRB from the national treasury is less than 20% of its expenses.

Considering all these facts, I believe that the import recommendation system managed by the KMRB under the Instant Provisions is a necessary and appropriate pre-inspection procedure for expressive materials and it does not amount to prior censorship banned by the Constitution.

The majority opinion tries to apply a strong ban on censorship and it is understandable to the extent that it is a reaction to the past when the authoritarian government abused censorship to support and propagandize its position. However, preserving the soundness of the national society by protecting healthy social ethics and the juveniles against the harm that cannot be cured after publication is a minimum safeguard in this value-chaotic era, which should never be abandoned.

Therefore, I do not the Instant Provisions violate the Constitution.

Justices Yun Young-chul (Presiding Justice), Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo Sun-hoe (Assigned Justice), Jeon Hyo-sook, Lee Sang-kyung

[Appendix] Constituting Provisions of the KMRB

The KMRB was established by the Public Performance Act at the relevant time and the scope of its official functions was stated in the Public Performance Act.

The Public Performance Act (Wholly amended by Act No. 5924 on February 8, 1999)

Article 17 (Korea Media Rating Board)

The Korea Media Rating Board (hereinafter referred to as the "Board") shall be hereby established to secure the ethical and public responsibilities of public performances and to thereby protect juveniles.

Article 18 (Formation)

(1) The Board is composed by 15 persons selected from those with expertise and experience in public performance such as films or videos and game by the entities chosen by the Presidential Decree in the fields culture and art, visual representations, juvenile affairs, law, education, and journalism etc.; who are then nominated by the president of the National

Academy of Arts, and then commissioned by the President of the Republic of Korea.

(2) Such matters as may be necessary for the formation and procedures of the Board shall be determined by the Presidential Decree.

Article 22 (Disqualification for Members)

No person who falls into any of the following Items may become members of the Board:

1. Public officials (excluding public officials in education and judges);

2. Members of political parties under the Political Parties Act;

3. Persons who fall into any of Items of Article 33 of the State Public Officials Act; and

4. Any other persons who are determined by the Presidential Decree.

Article 23 (Independent Exercise of Duties and Guarantee of Status)

(1) Members of the Board shall not receive any instructions or intervention in the exercise of their duties during their terms of office.

(2) No member of the Board shall be removed from office against his will unless he falls into any of the following Items:

1. Where he falls into disqualification as referred to in Article 22;

2. Where he is unable to perform his duties for a long time because of serious mental or physical impairment.

Article 24 (Functions)

(1) The Board shall deliberate and decide upon matters set forth in the following Items:

1. Matters concerning the rating of visual representations;

2. Matters concerning the formulation and enforcement of the Board Management Plans;

3. Matters concerning the establishment and amendment of the Board Regulations; and

4. Such other matters as determined by this Act or other Acts and subordinate statutes as the function or authority of the Board.

(2) The Board shall regularly survey public opinion on the visual representations, etc. already classified and take account of the results therefrom in carrying out the relevant matters, such as classification, etc.

(3) The Board may demand, if necessary, the submission of the

relevant materials from related persons such as visual representations importer, manufacturer etc. to see whether they are in compliance with the deliberation and decision in pursuant to Section 1 Item 1 and may, if there exists any violation, demand correction therefor.

Article 26 (Opening of Sessions to Public)

(1) Sessions of the Board shall be open to the public under the conditions as prescribed by the Board Regulations: provided, that sessions may be closed to the public by the decision of the Board if there exists any special reason.

(2) The Board shall record the proceedings of sessions under the conditions as prescribed by the Board Regulations.

Article 29 (Establishment and Amendment of Board Regulations etc.)

In case the Board Regulations are to be established or amended, the Board shall give an advance notice for a fixed period of not less than 20 days and may announce it officially by publishing it through the Gazette of the Government, etc. when necessary.

Article 30 (Financial Assistance)

The State may assist the Board with such expenses as may be required for its operation.