Case on Banning Unauthorized Military Uniforms

[2018Hun-Ka14. April 11, 2019]* First Draft

In this case, the Court ruled that Article 8 Section 2 prohibiting possession of unauthorized military uniforms with intent to sell them and Article 13 Section 1 Item 2 providing the ground of criminal punishment under the Act on the Control of Military Uniforms and Accouterments do not violate the rule of clarity within the principle of punishment by statute or infringe upon the freedom of occupation and the freedom of general action and, therefore, do not violate the Constitution.

Background of the Case

The defendant is a seller of unauthorized military uniforms. Possessing those uniforms with intent to sell them is prohibited by Article 8 Section 2 under the Act on the Control of Military Uniforms and Accouterments and violating the regulation will lead to criminal punishment of up to one-year imprisonment with prison labor or fine of up to 10 million won according to Article 13 Section 1 Item 2 of the Same Act. The defendant requested a constitutional review on the ground of the criminal punishment, during his criminal suit on charges of possessing unauthorized military uniforms with intent for sale. Accepting the request, the Busan District Court lodged a constitutional review on this case.

Subject Matter of Review

The subject matter of review in this case is whether Article 8 Section 2 under the Act on the Control of Military Uniforms and Accouterments (wholly amended by Act No. 7933, April 28, 2006) and Article 13 Section 1 Item 2 of the Same Act (amended by Act No. 12555, May 9, 2014) (the “Provisions at Issue”) violate the Constitution.

Provisions at Issue

Act on the Control of Military Uniforms and Accouterments (wholly amended by Act No. 7933, April 28, 2006)

Article 8 (Prohibition of Manufacturing or Distribution of Military Uniforms, etc.)

(2) No one shall manufacture or distribute unauthorized military uniforms or possess unauthorized military uniforms with intent to sell those military uniforms.Provided,thattheforegoingshallnotapplywhereitisintendedtousesuchuniformsforanyofthefollowingpurposes:

1.Where unauthorized military uniforms are used for cultural or art activities or a ceremonial event specified by Ordinance of the Ministry of National Defense;

2.Where wearing, using, or carrying unauthorized military uniforms is permitted by other statutes;

3.Where unauthorized military uniforms are used for an activity specified by Ordinance of the Ministry of National Defense as one for public interest, such as an activity conducted pursuant to a policy of a State agency or a local government.

Act on the Control of Military Uniforms and Accouterments (amended by Act No. 12555, May 9, 2014)

Article 13 (Penalty Provisions)

(1) A person who falls under any of the following subsections shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding ten million won.

2. A person who violates Article 8

Summary of the Decision

1. Issue of the Case

The Provisions at Issue prohibit the possession of unauthorized military uniforms with intent to sell them; however, the difference between unauthorized military uniforms and genuine battle dress uniforms is hard to tell with the naked eye. Therefore, the subject matter is whether the Provisions at Issue violate the rule of clarity within the principle of punishment by statute.

The other matter is whether the Provisions at Issue violate therule against excessive restriction by significantly limiting the sellers’ freedom of occupation or one-off sellers’ freedom of general action (freedom of contract) while banning the possession of unauthorized military uniforms with intent to sell them beyond its legislative purpose of preventing military forces from weakening.

2. Violation of the rule of clarity within the principle of punishment by statute

Article 2 Item 3 under the Act on the Control of Military Uniforms and Accouterments defines that the term "unauthorized military uniforms" means articles specified by Ordinance of the Ministry of National Defense among those that are similar to military uniforms in form, colors, or style which are extremely difficult to discern from military uniforms by appearance. In the meantime, the Provisions at Issue do not ban the military look. It is because that the military look mostly copied the symbol of battle dress uniforms, but is completely different from the genuine military uniforms in form, colors, or style. Any person with a sound common sense and general legal sentiment would be able to predict what the ‘unauthorized military uniforms’ that must not be possessed for sale are.

Thus, the Provisions at Issue do not violate the rule of clarity within the principle of punishment by statute.

3. Infringement upon the freedom of occupation or freedom of general action

The battle dress uniforms, copied by the unauthorized military uniforms, are special products delicately designed and manufactured to serve the military purpose. Falling trust on the military and soldiers caused by non-military people wearing the unauthorized military uniforms and impersonating soldiers would discourage effective response to the need of the national security. Since prohibiting people from wearing the unauthorized military uniforms alone is insufficient to serve the legislative purpose, it is inevitable to have a preemptive regulation in place that bans even possessing those uniforms with intent for sale. The scope of the unauthorized military uniforms is narrowly defined as the articles that are visually indistinguishable from the genuine ones.

The freedom of occupation or freedom of general action restricted by the ban on possessing the unauthorized military uniforms for sale does not outweigh the public interest. Therefore, the Provisions at Issue neither violate the rule against excessive restriction nor infringe upon the freedom of occupation or freedom of general action.

4. Conclusion

The Provisions at Issue do not violate the Constitution.

Dissenting Opinion of Three Justices

The Provisions at Issue do not violate the rule of clarity rule within the principle of punishment by statute but infringe upon the freedom of occupation or freedom of general action.

As it is the freedom of the individuals whether they are going to purchase the unauthorized military uniforms and how they are going to use those uniforms, it is hard to suppose that all such acts impact the national security. However, the Provisions at Issue impose a blanket ban on simply possessing the unauthorized military uniforms only for economic gains though the act will not pose a threat to the national security. Also this may bring criminal charges against even those who are not likely to undermine the legislative purpose.

People’s perception has changed and they are accepting who wears what as an individual choice and freedom unless there was direct or indirect harm done. Under the circumstance, the Provisions at Issue are not regarded to have the reason for existence that it had when it was first legislated.

Even if possessing the unauthorized military uniforms for sale is allowed, national security can surely be protected through other criminal provisions such as the charges of espionage or false impersonation of public official..

The Provisions at Issue violate the rule against excessive restriction and infringe upon the freedom of occupation or the freedom of general action. Therefore, the Provisions at Issue violate the Constitution.

* This translation is provisional and subject to revision.