‘위축효과’에 대한 비교법적 고찰
A study of "Chilling Effect Doctrine" on constitutional (judicial) precedent in America, Germany and Korea
김형성, 임영덕
초록
In America, The Supreme Court first referred to the "chilling effect" in a constitutional context in Wieman v. Updegraff. Since then the phrase has been extensively employed in opinions dealing with free speech and with other individual rights guaranteed by the Constitution. In Walker v. City of Birmingham, Justice Brennan wrote about the Court's use of the chilling effect. The chilling effect doctrine give these freedoms the necessary "breathing space to survive," the Court has modified traditional rules of standing and prematurity. We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the "chilling effect" upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise. The chilling effect doctrine has been most frequently employed and refined in first amendment cases. It reveals that the invocation of the chilling effect has one of three consequences. Chilling may justify the relaxation of rules which inhibit the litigation of constitutional claims in the federal courts; be proof of irreparable injury and a basis for injunctive relief; or demonstrate the need to create a substantive immunity from governmental control. Ultimately, in America, it has been suggested that the doctrine has particular relevance when the statute suffers from vagueness or overbreadth in case of freedom of expression. so, the Supreme Court has used unconstitutional reason. In Germany, The Federal Constitutional Court(Das Bundesverfassungsgericht) has considered "chilling effect(Einschüchterungseffekt)" in constitutional judicial procedure about freedom of expression(GG Art. 5 Recht der freien Meinungsäußerung, Medienfreiheit, Kunst- und Wissenschaftsfreiheit). In korea, The Constitutional Court refered to the "chilling effect" in a lot of constitutional context. and The chilling effect doctrine has been used unconstitutional reason, too. Frankly speaking, but, The Constitutional Court Korea misused this doctrine in some case. Specially, in case of National Security Act art. 9 (2) and Assembly and Demonstration Act art. 3 (1), art. 14 (1), the Korean Constitutional Court decided that vague articles are not unconstitutional clauses. because of considering the subjective requisite when police officer, prosecutor and judge interpretate National Security Act and Assembly and Demonstration Act. But this judicial decision of the Korean Constitutional Court increased the chilling effect in freedom of expression and in freedom of assembly in korea. In this essay, we compare with a judicial decision about the chilling effect doctrine among The Supreme Court of America, The Federal Constitutional Court of Germany and The Constitutional Court of Korea.