미술품 창작과 예술의 자유에 관한 일고

A Study on the Creation of the Arts and the Freedom of the Arts

The atmosphere in which an artist creates should, ideally, be free of external constraints. So the Article 22 of the Korean Constitution prescribes "all citizens enjoy the freedom of learning and the arts". But there are a lot of censorship of the arts. A fundamental conflict arises between the government's legitimate interest in regulating political subversion and obscenity and the guarantee of freedom of arts. In Korea obscenity, McCarthyism(the violation of the National Security Law), flag desecration, defamation are good example. This paper study afore-mentioned area. In obscenity area, there are many cases. This paper contains the definition, the present rule, historical case -that is 'La maja desnuda' [known in English as The Naked (or Nude) Maja]. In the National Security Law area, this paper contains two cases- those are the 'National Liberation Movement' case and the 'Riceplanting' case. In the flag desecration area there are some cases in Korean society. But in the art creation part there is no case which is disputed in the court. So this paper introduce some American cases. In the area of defamation, this paper introduce the Silberman v. Georges case. As a conclusion this paper urges the freedom of art should be guaranteed. All censorship of arts must be abolished. Of course under the mask of arts, there may be some cases which are non-arts. But in the marginal case, the 'in dubio pro arte' principle must be abided by. When holding the Flag Protection Act of 1989 unconstitutional, the U.S. Supreme Court conclude that "punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering." That's the conclusion.