Motion Pictures Pre-Inspection case,

[8-2 KCCR 212, 93Hun-Ka13, etc., October 4, 1996]

A. Background of the Case

This decision struck down pre-inspection by the Public Performance Ethics Committee ("the Ethics Committee") provided under Article 12 of the former Motion Picture Act (hereafter "MPA") as being violative of the constitutional ban on censorship.

Article 12 (1) and (2), Article 13 (1), and Article 32 (ⅴ) of the old MPA (repealed by Act No. 5129 [the Promotion of Motion Pictures Industry Act] on December 30, 1995) require all motion pictures to be evaluated by the Ethics Committee before showing. The failure to do so is punishable by imprisonment of up to two years or a fine up to five million won.

Article 21 (1) of the Constitution stipulates "every citizen shall have the freedom of speech and of press as well as that of assembly and association," providing general protection for freedom of expression. The second part of the same Article bans censorship or licensing of the speech and press, and licensing of assembly and association. The ban on censorship was first introduced to the Constitution in the proviso of Article 28 (2) of the Second Republic's Constitution, and was also declared by the Third Republic's, although exceptions for motion pictures and entertainment were allowed. The Fourth and Fifth Republic did not separately provide for the ban, but the present Constitution does and does so without any exception. Regardless of explicit provisions in the Constitution, the ban on censorship forms the essential content of freedom of press in a democratic constitution. Nevertheless, lack of full appreciation of the constitutional value of freedom of press led to a number of laws allowing censorship on various forms of media, and has continued to do so even after the present Constitution took effect on 1998.

The combined cases, 93Hun-Ka13 and 91Hun-Ba10, arose out of motions for constitutional review by the claimants who were brought to the Seoul District Criminal Court for violating the MPA by showing Opening the Closed Gate to the School in 1992 and Oh, Country of Dream in 1989 respectively without pre-inspection of the Ethics Committee. The first claimant made the motion when prosecuted, and the court accepted, referring the case to the Court for review. The second, already convicted and

imposed a one million won fine, made the motion in appeal of that conviction, but was denied. Accordingly, they filed a constitutional complaint with the Court.

B. Summary of the Decision

The Court struck down the requirement of pre-inspection by the Ethics Committee provided in Article 12 (1), (2) and Article 13 (1) of the former Motion Picture Act after mentioning the constitutional protection of motion pictures and the principle of prohibition of censorship.

A motion picture is a form of expression, and its production and showing should be protected by the Article 21 (1) freedom of speech and press. It is protected also under the Article 22 (1) freedom of Science and arts since it is often used as means to publish the results of academic research or as a form of art.

Censorship, forbidden by Article 21 (2), is an administrative authority's act of deliberating on the contents of an idea or opinion and suppressing it from being published on the basis of its contents - in other words, a ban on publication of the unlicensed material. Censor- ship debilitates originality and creativity of people's artistic activities and poses a grievous danger to their mental functions and may suppress in advance the ideas adverse to the government or the ruler, leaving at large only the opinions controlled by the government or innocuous ideas to it.

Compared to Article 37 (2) that allows all liberties and rights of the people to be limited by means of statute for reason of national security, public order or public welfare, Article 21 (2) stands for prohibition of censorship as a means at all, even if in form of a statute, when freedom of press and publication is at stake. However, unconstitutional censorship is only a system of pre-inspection conducted by an administrative body with complete control on whether a material can be published or not, based on compulsory submission and supported by a mechanism enforcing the ban in the event that it is not licensed.

The MPA subjects all motion pictures to pre-inspection of the Ethics Committee (Article 12 (1)), which is commissioned by the Minister of Culture and Sports (Article 25-3 (3)), reports the inspection results to the Minster through its Chairperson, is funded from the government budget to support the operation of the Committee (Article 25-3 (6)), and therefore is an administrative body for all practical purposes. The Act finally

prohibits showing of any unlicensed picture (Article 12 (2)) upon penalty of imprisonment or fine, meeting all the elements of censorship forbidden by the Constitution.

C. Aftermath of the Case

On October 31, 1996, about a month after this case, the Court issued another decision of unconstitutionality in the Phonograph Pre-Inspection case (CC 94Hun-Ka6), a case with practically the same constitutional controversy. This case arose out of motion for constitutional review by a singer being prosecuted and tried at the Seoul District Criminal Court for having produced and distributed uninspected records. The court referred this challenge to the Sound Records and Video Products Act (before it was revised by Act No. 5016, on December 6, 1995) to the Court, which struck it down unanimously for the same reason as in the MPA case.

These two decisions divided public opinion. Many in the cultural fields including motion pictures enthusiastically welcomed them as revolutionary, strengthening freedom of art and press, and others criticized them as removal of all the means of regulating obscene materials and therefore as effectively permitting obscenity. The debates focused on interpretation of the Court's rationale. As long as the Ethics Committee does not discolor itself as a governmental entity, it was argued, the Committee can only rate an obscene material and cannot edit it or withhold from it a seal of inspection. So, it was debated whether we needed to designate theaters for showing obscene materials in order to protect juveniles.

The debate manifested itself in a deadlock in the Culture, Sports, and Public Information Committee of the National Assembly deliberating on revision of the Promotion of Motion Pictures Industry Act around the time of this decision in late 1996. The opposition party advocated purely rating the pictures and allowing those rated 'limited showing permitted' to be shown in adult theaters. The ruling party advocated for suspending showing of those pictures rated 'off-the-rating'. The revised Promotion of Motion Pictures Industry Act, mainly reflecting the ruling party's position, was passed on April 10, 1997 and took effect on October 10, 1997.

The outlines of the revised PMPIA are as follows: The pre-inspection system was replaced by a four-tier rating system by which pictures can be shown to all or only to those above 12, 15 or 18 years in age, depending on the rating, or can be deferred for

rating in six months (Article 12 (5)). The Ethics Committee changed its name to the Korean Council for Promotion of Performance Arts which then did the rating (Article 12). In order to make the rating effective, the Minister of Culture and Sports was authorized to ban or suspend the showing of unrated pictures, pictures with fraudulently obtained or altered rate, or pictures shown in violation of the rating (Article 18) and to impose on the violators the penalties including suspension of business (Article 18-2) or civil fines up to 100 million won (Article 35 (1) (ⅷ)). One could file an objection with the Council to rating or postponement within 60 days of the decision (Article 13-2).