취재의 자유와 그 한계 - 정보 취득의 위법성 심사를 중심으로

Freedom of Access to Information and Its Limitation

&nbsp;&nbsp;In this paper I maintain that the right to access to information is not within the ambit of the right to free speech. On the contrary, most Constitutional scholars in Korea argue that the freedom of speech should be regarded not as an isolated right, but as a whole process of flowing information, which means that the right to access to information along with the right to know is as important as the right to speak in a democratic society.<BR>&nbsp;&nbsp;The major difference between the popular view of Constitutional scholars and mine lies in whether breaking the law for the purpose of gathering news is protected under the name of the right to free speech. Even scholars, holding the view that the right to access to information is a Constitutional right within the right to free speech, agree that you cannot break the law, which is generally applicable to all, without being punished. However, in my opinion, logical conclusions from proposing the Constitutional right to newsgathering are that you may break the law so long as you are to gather information for the sake of expressing something in public and that your legal status will depend upon how the balance between two Constitutional rights, namely, your right to free speech and the infringed person&quot;s right such as property right or privacy right tilts. I believe that those conclusions make no sense. Property right owners or pri vacy right owners should be kept secure against law breakers.<BR>&nbsp;&nbsp;I&quot;m of an opinion that balancing of two rights is not necessary. My idea is to take the right to access to information away from the right to free speech, which means that you may break the law to gather news with your responsibility. Judges may consider the purpose of breaking the law, not in the stage of finding guilty, but in the stage of choosing penalties.