Profanity Against the Nation Case

[27-2(A) KCCR 700, 2013Hun-Ka20, October 21, 2015]

In this case, the Constitutional Court held that Article 104-2 of the former Criminal Act, which prescribes criminal penalties for expressions or actions that may or actually do undermine the safety, interest or dignity of the nation through means such as insult, defamation, distortion or dissemination of false facts related to state institutions established by the Korean government or its Constitution, infringes on the freedom of expression and thereby violates the Constitution.

Background of the Case

(1) The petitioner who requested constitutional review in this case had been indicted on charges of profaning the nation and violating the Presidential Emergency Decree on the Protection of National Safety and Public Order by drafting and keeping expression materials that distorted information related to state institutions, etc. as well as circulating them to some Japanese and American people, leading to the publication of the materials’ translated version in a Japanese magazine and thereby undermining the safety, interest, and dignity of the state by way of foreigners.

(2) The said petitioner was sentenced to three years of imprisonment and three years of suspension of qualifications for the above crimes at the court of first instance, and this sentence was affirmed following the dismissal of the petitioner’s appeals to the High Court and the Supreme Court, respectively. The petitioner filed for retrial of the case with the court of first instance, namely the Seoul Central District Court, which decided to commence the retrial on April 19, 2013.

(3) While the abovementioned retrial was pending, the petitioner filed a motion requesting a constitutional review of Article 104-2 of the

former Criminal Act that prohibits profanity against the nation with the Seoul Central District Court, which granted the motion and filed for constitutional review with the Constitutional Court on June 13, 2013.

Subject Matter of Review

The subject matter of review in this case is the constitutionality of Article 104-2 of the former Criminal Act (amended by Act No. 2745, Mar. 25, 1975 and later amended by Act No. 4040, Dec. 31, 1988), which is laid out below:

Former Criminal Act (amended by Act No. 2745, March 25, 1975, and later amended by Act No. 4040, December 31, 1988)

Article 104-2 (Profanity against the Nation, etc.)

(1) A Korean national who may or actually does undermine the safety, interest or dignity of the nation through insult, defamation, distortion, or dissemination of false facts of state institutions established by the government of the Republic of Korea or its Constitution, or through other means in a foreign territory shall be punished by imprisonment or imprisonment without prison labor for not more than seven years.

(2) A Korean national who commits acts specified in paragraph 1 by using aliens, foreign organizations, etc. in the territory of the Republic of Korea shall be punished as prescribed in paragraph 1.

(3) The person who is guilty of acts as mentioned in paragraph 2 may also be deprived of his or her qualifications for not more than 10 years.

Summary of Decision

1. The instant provision limits certain contents of expression, and since the limitation of such rights is, in principle, allowed only under strict conditions, limited to inevitable circumstances where major public interests are at stake, it is at issue whether the provision at issue violates the rule against excessive restriction and thus infringes on the freedom

of expression.

2. In light of the circumstances at that time when the press was regulated and the aforementioned provision was removed, it is doubtful whether the true legislative purpose of the instant provision can be construed as the protection of national safety, interest, and dignity; it is also hardly conceivable that blanket limitation of acts of expression by way of criminal punishment contributes to the purpose. Therefore, the means to achieve the legislative purpose is not considered appropriate.

3. “Other means” as a form of behavior prohibited by the instant provision is not clearly defined, and the scope of its application is too far-reaching. The “interest” or “dignity” of the nation is also abstract and unclear in its meaning; imposing punishment not just for the acts that undermined national interest or dignity but also for those that can possibly do so, discourages free criticism and debate regarding the state and state agencies and extensively limits the freedom of expression.

The Criminal Act has a number of provisions to ensure the safety and independence of the nation, and the National Security Act or the Military Secret Protection Act also has detailed provisions to that end, which means there is no need to have the instant provision for the purpose of securing the “safety” of the nation. Furthermore, preserving the true “interest” of the nation is ensured through extensive discussions and forums, and enforcing this with criminal punishment is excessive. Imposing criminal penalties on the general public for their criticism or negative judgments on grounds that they undermine the “dignity” of the nation is contrary to the spirit of democracy that guarantees free criticism and participation involving the state. The state or state agencies are capable of finding facts and engaging in public relations of national administration by themselves with diverse and vast sources of information in hand, and are also well-equipped to fully achieve the legislative purpose of the instant provision by actively responding to dissemination of false facts or malicious distortion. Thus, the instant

provision fails to meet the least restrictive means requirement.

4. It is doubtful to what extent the blanket restriction of people’s expressions through criminal punishment can truly contribute to protecting the safety, interest, or dignity of the state, and the level of limitation on fundamental rights is highly important in light of the value that the freedom of expression holds in a democratic society. For this reason, the instant provision also fails to strike the balance of competing interests.

Thereupon, the instant provision breaches the rule against excessiverestriction and infringes on the freedom of expression, ultimately violatingthe Constitution.