헌법상 문화국가원리의 구체화와 헌법재판에서의 적용

다국어 초록 (Multilingual Abstract)

In modern society, intervention of state(government) in cultural fields would be approved if non-governmental power such as capital destroys autonomy of culture and alienates some kinds of culture in cultural fields. Therefore, the constitutional principle of culture-state should be understood as a principle regarding role of state preventing harmful effect of cultural neo-liberalism(non-intervention) from taking place, not as a principle of strong paternalism. In this respect, the constitutional principle of culture-state would suggest an ideal relationship between state and cultural fields and evaluate the constitutionality of a culture policy. Depending on the decisions of Constitutional Court of Korea and academic argumentation about culture, we might set up specific constitutional principles of culture-state as follows; 1) state should not intervene in cultural fields (basic principle); 2) but, state might intervene in cultural fields to restore autonomy of culture and protect diversity and equality in cultural fields (threshold principle); 3) in this case, state and its culture policy should be impartial and state should provide cultural benefit and build up an institutional environment in which diverse kinds of culture can be freely created (policy direction principle). As this constitutional principle of culture-state is a right-based principle originated from constitutional rights such as freedom of thought, religion, speech and art, equality and pursuit of happiness, it should be applied in cases those constitutional rights are encroached through review by principle of proportionality. For instance, above-mentioned basic principle might be used as a standard of evaluation on validity of purpose and proportionality of cultural policy, and threshold principle and policy direction principle might be used to evaluate whether cultural policies are appropriate means and least restrictive means. However, in decision of 2014. 4. 24. 2011Hun-Ma659 of Constitutional Court of Korea, majority opinion never applied constitutional principle of culture-state to the constitutional adjudication on a compulsory shutdown program which prevents minorities under 16 from playing online games from midnight to 6 A.M.