방송의 공정성과 법의 포기

Abstract

The related decision is dealing with the Korea Communications Commission’s sanctions against a documentary broadcast program called “Hundred Years’ War in Korea” which was broadcasted on a public access channel called Citizens’ Broadcasting(RTV). The documentary was produced by the Institute for National Studies, which described former Presidents Syngman Rhee and Park Chung-hee very negatively. Korea Communications Commission(KCC) imposed sanctions on the grounds that the contents violated the provisions concerning fairness, objectivity and prohibition of defamation under Broadcasting Deliberation Regulation. In the ruling of Seoul High Court the plaintiff lost the case, but the Supreme Court overturned the original ruling on the grounds that it can not be regarded as a violation of its duty to maintain fairness. As a result, the case has become a subject of intense political controversy and has drawn media attention. The broadcasting review system based on fairness doctrine has met with strong criticism. This view argues that fairness review is a kind of censorship by an administrative agency, therefore it should be abolished or integrated into all programs of a broadcaster even if maintained, or such programs on national policy should be excluded from the review. It can be said that the decision was influenced by this criticism. On the other hand, jurists recognize the legitimacy of broadcasting review on the ground of the public responsibility of broadcasting, the difference between broadcasting and newspapers, and the historicity of broadcasting review system, etc. Under U.S. law, the tendency of an administrative state is useful in analyzing our case. Adrian Vermeule analyzes that American case law theory presented by former chief Justice Charles Evans Hughes that distinguishes between the matter of law and facts, has changed to deference decisions of administration. As a rational and logical consequence of the lawyers, phenomena of law’s abnegation from law’s empire to administrative state occur. In our case, deference to administration appears as the administrative discretion in confirming requirements of statute provisions. The Supreme Court continues to recognize the discretionary power of administration and the judicial deference to the decision on uncertain concepts in the requirements. However, if the rationality of the standards set by administration is not approved, there will be re-intervention by the court based on the mechanism of ‘double rationality’. On the other hand, in a recent series of en banc decisions, the Supreme Court seems to have done hard look reviews, but in reality tends to ‘law’s abnegation’ in other ways that could dismantle the control standards for administrative discretion. The majority opinion in the decision deem that different criteria should be applied to broadcast review according to so-called media, channel, or program. It is said that a more relaxed review standard than news programs should be used for viewer-generated documentaries. This study reviews the logic of the decision critically. Furthermore, it points out that the matter of the violation of regulations on broadcasting review should be approached as a matter of deference to administrative discretion by agency. It is true that there is much room for institutional improvement in broadcasting review system based on fairness. However, the decision could be criticized for an excessive legal interpretation affected by the strong criticism above mentioned. This attitude is worrisome in that it reveals a recent tendency of Supreme Court’s decisions.