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was unconstitutional insofar as it required the publication of a notice of apology because it violated
freedom of conscience and that the "unlawful act" provision of the Act failed to qualify as a restriction of
freedom of public welfare.
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III. Discussion and Analysis
Freedom of the press is a protected right under the Constitution in South Korea. While it was an
aspiration most of the time in the pre-1987 era, it is now an everyday reality for Koreans. And many
Koreans, including some journalists and human rights lawyers, are concerned about "too much" press
freedom and about "tool little" press accountability in their country.
The Constitution contains the qualifying caveat, stating that press freedom cannot be abused to
violate the reputation and privacy of other citizens. Nevertheless, the constitutional limitation does not
seriously inhibit the continuing expansion of freedom of the press in Korea. The key, though, is how the
list of legitimate limitations on freedom of expression under the Constitution operates as a frame of
reference for Korean lawmakers in enacting various press statutes. The normative values underpinning
the Constitution should guide the legislators because press freedom does not necessarily depend upon a
particular press law. Given that press law is more or less an instrument, it can be used to suppress or
enhance press freedom, "depending on the values it reflects."
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The steady expansion of freedom of speech and the press under the Constitution of Korea is due
in large part to the emergence of constitutionalism characterized by an independent judiciary in general
and by an active Constitutional Court in particular. The growing assertiveness of the Korean courts is
testimony to the functioning operation of the separation of powers principle in a democratic South Korea.
The Constitutional Court’s vigorous use of judicial review deserves credit for institutionalizing
free speech and press as a permanent fixture of Korean democracy. As illuminated by a number of
Constitutional Court rulings on freedom of speech and press as a right during the past decade,
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the
Court’s surprisingly liberal understanding of a free press is in large measure buttressed by the formal
commitment of the Constitution of 1987, which reflects the "rule of law" that Koreans pushed hard for
during their "people’s power" revolution in mid-1987.
In interpreting libel law, Korean courts tend to note various concepts and theories from American
law. But the judicial attention in Korea to American legal principles does not necessarily mean that the
Korean courts adopt U.S. libel rules in their decisions. Rather, the American model is used by Korean
Convention