특정 언론사에 대한 대통령 전용기 탑승 배제 조치에 관한 헌법적 검토

초록

Around November 2022, in relation to President Yoon Suk-yeol’s overseas trip (to Southeast Asia), the Office of the President excluded reporters from Munhwa Broadcasting Corporation(MBC) from boarding the presidential aircraft. This decision sparked public controversy at the time and also raised constitutional concerns. In this article, the author examines the constitutional issues surrounding the exclusion of MBC reporters from the presidential aircraft and attempts a constitutional assessment. The results of the discussion are summarized as follows: First, the exclusion measure in this case constitutes an exercise of governmental power in the form of a de facto authoritative act, and therefore should be considered a public act subject to a constitutional complaint. Second, regarding the constitutional complaint concerning the exclusion measure, there is a possibility that similar exercises of public power may be repeated in the future, and the issue requires urgent constitutional clarification. Therefore, it should be recognized as an exception to the requirement of current interest in constitutional litigation. Third, although not explicitly adopted by the Constitutional Court of Korea, the issue surrounding the exclusion measure may be viewed as a case where the doctrine of unconstitutional conditions under U.S. constitutional law could be applied. It is necessary to actively and progressively consider adopting this doctrine or its underlying rationale into Korean constitutional jurisprudence for application in individual constitutional adjudication. Fourth, the exclusion measure clearly restricts the freedom of reporting—particularly the freedom of news gathering—of MBC and its affiliated journalists. Furthermore, the measure violates the principle of proportionality, thereby infringing upon their freedom of news gathering and reporting. Fifth, this exclusion is not merely a formal restriction on freedom of the press but constitutes a substantive restriction. Therefore, when applying the strict standard of proportionality review, it can be concluded that the measure infringed upon the equality rights of MBC and its reporters.

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