명백 현존하는 위험의 원칙과 우리나라에서의 적용사례

초록

In 1791, U. S. Constitution adopted the First Amendment which guarantees the freedom of expression with some other individual rights. The freedom of expression has been crucially treated and constitutionally guaranteed for the desirable self-developments of individuals in the free democratic societies since then. The Clear and Present Danger Doctrine was introduced and developed by the U. S. Supreme Court which applies to the content-based regulation of political expressions. It was invented by Justice Holmes in Schenck v. United States in 1919, sometimes stepped back to the Bad Tendency Rule or Clear and Probable Danger Doctrine, and elaborated with modern standards in Brandenburg v. Ohio in 1969. In the United States, it is frequently used as an important criterion in deciding the constitutionality of governmental regulations on political expressions concerning Irak War these days. In spite that many criticisms have incessantly existed against the Clear and Present Danger Doctrine in the United States, it has been esteemed as a robust safeguard of the freedom of expression against the arbitrary governmental regulations on the free speech. Korean academics introduced the Clear and Present Danger Doctrine in their textbooks but its research in depth has not been popular in Korea so far. For the first time in the courts, Korean Constitutional Court partially adopted the Clear and Present Danger Doctrine in its decision on April 2, 1990 on deciding the constitutionality of Art. 7 in Korean National Security Act punishing the praise and encouragement of the activities of Anti-governmental organizations. However, it did not adopt 'present danger' requirement but only 'clear danger' one in its reasoning. Korean Supreme Court adopted the clear danger requirement from Korean Constitutional Court decision for a short time in Art.7 of Korean National Security Act cases but it has abandoned the requirement after Korean Congress revised Art.7 of Korean National Security Act dropping out the clear danger requirement. This study consistently aims at exploring the implications of the Clear and Present Danger Doctrine to Korea and some crucial points we should consider when using it as our constitutional standard.

키워드