광고 사전심의 제도의 위헌성에 대한 헌법적 고찰 - 의료기기 광고 사전심의 제도의 위헌성에 대한검토를 중심으로 -

Abstract

In South Korea, the advertisement review system is gradually shifting from a legal pre-review system to an autonomous pre-review or post-review system based on a number of rulings. The current system is limited to the examination of matters that may cause damage to the individuals regarding health, safety, and consumer safety, without having a system of review at large. However, the Constitutional Court recently ruled that most pre-review systems regarding medical advertisements and health-related food ads to be unconstitutional. There is no pre-review system except for the medical device pre-review system. Since the medical advertisement review system was declared unconstitutional (due to Hunba75 pass in 2015), there are concerns over the emergence of the system for protecting consumers and the lack of protection against consumer damage through proactive review and follow-up restriction measures. As the new system of pre-review has emerged due to the revision of the medical law, it is time to consider the need for a coherent legal system in order to protect the basic rights of advertisers as well as consumer damage due to reckless advertising. Regarding the advance review of medical device advertising, there is a conflict between constitutional and unconstitutional rights. According to the current principle of the Constitutional Court, the pre-review restriction is expected to be unconstitutional. The judgment will be dependent on whether the deliberative assembly, Korean Medical Devices Industry Association (KMDIA), has a possibility to intervene. However, in my personal opinion, the Constitutional Court’s principle of banning absolute pre-review should be applied to advertisements for commercial purposes only. In particular, areas that are directly related to public interest and consumer protection, such as medical device advertising, careful judgment is necessary for applying the principle of absolute restriction of pre-review. By policy, medical device advertising shall also be based on an autonomous pre-review system, and it is deemed necessary to establish a regulated self-regulatory system that compensates for the lack of compulsory regulation. As the Constitutional Court has indicated in many cases, the government must minimize direct intervention of regulatory systems and create a regulation that can be used jointly by the government and industry.