8/10/2017 Constitutional Court Korea > Decisions > Major Decisions In conclusion, the Provision violates the rule against excessive restriction that serves as a limit for all legislation restricting fundamental rights as provided for in Article 37(2) of the Constitution, and thus infringes on the complainant's freedom of expression. III. Review on Merits A. Fundamental Rights Infringed Article 21(4) of the Constitution provides that "Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics." This should be considered as a provision that places emphasis on the responsibility and obligation accompanied with the freedom of speech and press and, at the same time, lays down the conditions for restriction on the freedom of speech and press, but not one that imposes a limit on the boundary of the freedom of expression to be protected under the Constitution (21-1(B) KCCR 545, 560, 2006Hun-Ba109, etc, May 28, 2009). In other words, an expression cannot be excluded from the boundary of protection of the freedom of expression from the beginning just because it contains certain content. Instead, it should be interpreted that "insulting expressions" that may infringe on others' reputation or rights are to be protected as the freedom of speech and press stated in Article 21 of the Constitution, provided that such expressions can be restricted for the purpose of national security, maintenance of law and order, or public welfare pursuant to Article 37(2) of the Constitution (242(B) KCCR 141, 152, 2011Hun-Ba137, Nov. 29, 2012). In conclusion, the Provision restricts the freedom of expression guaranteed by the Constitution by prohibiting insulting statements of certain content through punishment. B. Whether the Provision Violates the Void for Vagueness Doctrine 1. Meaning of the void for vagueness doctrine a. The void for vagueness doctrine is particularly relevant when it comes to legislation restricting the freedom of expression. Given that the freedom of expression is indispensable for realizing the ideas of popular sovereignty in this modern democratic society, regulation of freedom of expression through vague norms may intimidate the expressions protected under the Constitution and thereby neutralize the essential function of the freedom of expression that allows for diverse opinions, views, and ideologies and thus the cross-check among them. For this reason, it is required by the Constitution that the law regulating the freedom of expression specify the concept of the restricted expression clearly and in detail. Meanwhile, the void for vagueness doctrine is also required by the principle of legality. That is, the principle of legality guaranteed under Article 12 and 13 of the Constitution implies that crime and its punishment should be defined by law, and that the void for vagueness doctrine derived from the legality principle should have the elements of crime clearly stated so that anyone can predict what kind of and how acts are punishable by law and decide his/her actions accordingly. Yet, it is impossible, from the technical perspective, to compose all texts of legal norms with purely technical concepts, and although somewhat broad concept requiring, to a certain extent, supplementary interpretation of judges is employed, it is not necessarily void for vagueness insofar as the interest protected by the penal provision, prohibited actions, as well as the kind and degree of punishment are understandable with general method of interpretation by any person equipped with sound common sense and conventional legal awareness (21-1(B) KCCR 545, 560-561, 2006Hun-Ba109, etc, May 28, 2009). And whether a legal norm is clear or not can be determined by whether it provides predictability through fair statement of its definition and implication to addressees of the law and whether it prevents arbitrary interpretation or enforcement of law by the competent institution through detailed clarification of its meaning in law. The implication of a legal norm takes concrete shape when its texts are interpreted with its legislative purpose, history, systematic structure, etc., so whether the norm is void for vagueness or not will depend on whether such interpretation method can provide a standard for reasonable interpretation of its meaning (17-1 KCCR 812, 821822, 2002Hun-Ba83, June 30, 2005; 22-2(B) KCCR 368, 377-378, 2009Hun-Ba27, November 25, 2010). b. The Provision provides for punishment of those who publicly insult others, as well as restricts the freedom of expression. Therefore, it should comply with not only the void for vagueness doctrine derived from the principle of legality but also from the clarity principle required for legislation restricting the freedom of expression; and the clarity required herein should be understood in the strict sense. 2. Judgment a.The protected interest in the Provision is social reputation of one's value, or external reputation. The dictionary definition of the word "insult" in the Provision is "to affront or demean," and the criminal law academics also perceive "insult" as an expression of contemptuous intention of someone without factual grounds that include all forms of actions made either in writing or physical movements, not confined to linguistic expressions. Even the http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 3/7