청소년 보호와 국가후견주의의 한계 - 헌재 2014. 4. 24. 2011헌마659등(병합), 청소년보호법 제23조의3 등 위헌확인의 평석을 중심으로 -

Abstract

The Constitutional Court of Korea(hereinafter ‘the Court’) held that so-called ‘Internet Game Shutdown System’ which bans providing Internet Game to youth under the age of 16 from a.m. 12 to a.m. 6 is not unconstitutional in 4. 24. 2014(2011Hun-Ma659). Conclusively, I think that the decision of the Court (hereinafter ‘the Decision’) lacks recognition that the Internet Game Shutdown System is based on a premodern way of thinking, administrative opportunism, and statism. Especially, the Decision lacks profound understanding on the meaning of family autonomy and the limits of state paternalism in youth protection. Particularly, the problems of the Decision of the Court are as follows. First, the Decision lacks awareness on youth as human rights subjects. The Decision premises youth as just objects to protect. Second, the Decision is short of understanding on the meaning of family autonomy in youth protection. Third, the Decision is short of consideration on the limit of state paternalism in youth protection. Fourth, the Decision lacks consideration on the limit of state’s role in culture sector in accordance with the principle of culture state. Fifth, in the Decision, the macro and comprehensive consideration is absent on the overall legal system in relation with youth protection. Sixth, the Decision has serious mistakes in setting and assessing comparative groups in equal protection, due to misunderstanding on characters of the Internet.