Case on “Pro-Enemy” Clauses of the National Security Act

[27-1(A) KCCR 453,2012Hun-Ba95ㆍ261, 2013Hun-Ba77ㆍ78ㆍ192ㆍ264ㆍ344, 2014Hun-Ba241,2013Hun-Ka26, 2015Hun-Ka7, 2014Hun-Ba100 (consolidated), April 30, 2015]

In this case, the Constitutional Court upheld the provisions of the National Security Act prohibiting “pro-enemy” actions, accession to“pro-enemy” organizations, as well as manufacture, possession, distribution,or acquisition of any expression materials with the intention to commit “pro-enemy” actions. The portions of the provisions at issue are, respectively, “any person who praises, incites or propagates the activities of an anti-government organization or who acts in concert with it with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order” in Article 7 Section 1; “any person who joins an organization aiming at the act as referred to in paragraph (1)” in Article 7 Section 3; and “any person who manufactures, holds, distributes, or acquires any documents, drawings or other expression materials with the intention of committing the act as referred to in paragraph (1)” in Article 7 Section 5.

Background of the Case

A. The movants of 2013Hun-Ka26, 2015Hun-Ka7 and complainants of2012Hun-Ba95, 261, 2013Hun-Ba77, 78, 192, 264, 344, and 2014Hun-Ba100,241 had been indicted on charges of violating Article 7 Section 1, 3 and 5 of the National Security Act that criminalize pro-enemy actions, accession to pro-enemy organizations, and manufacture, possession, distribution, or acquisition of expression materials with the intention of committing pro-enemy acts.

B.With the above cases pending, the defendants, or the abovementionedmovants and complainants, filed motions requesting constitutional review of the aforementioned provisions and Article 2 Section 1 of the National

Security Act which provide for anti-state organizations. The Suwon District Court and the Seoul Northern District Court granted the motions and filed for constitutional review of the laws in question (2013Hun-Ka26, 2015Hun-Ka7), while the other courts dismissed the motions. Therefore, the complainants, pursuant to Article 68 Section 2 of the Constitutional Court Act, filed a constitutional complaint challenging the constitutionality of the said provisions (2012Hun-Ba95, 261, 2013Hun-Ba77, 78, 192, 264, 344, 2014Hun-Ba100, 241).

Subject Matter of Review

The subject matter of review in this case is as follows: (a) Article 2 Section 1 of the National Security Act (amended by Act No. 4373, May 31, 1991; the same applies hereinafter) (the provision, specifically, is hereinafter referred to as the “Anti-State Organization Clause”), (b) a portion of Article 7 Section 1 of the Act regarding “any person who praises, incites or propagates the activities of an anti-government organization or who acts in concert with it with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order” (hereinafter the “Pro-Enemy Actions Clause”), (c) a portion of Article 7 Section 3 of the Act regarding “any person who joins an organization aiming at the act as referred to in paragraph (1)” (hereinafter the “Joining Pro-Enemy Organizations Clause”), and (d) the portion of Article 7 Section 5 concerning “any person who manufactures, holds, distributes, or acquires any documents, drawings or other expression materials, with the intention of committing the act as referred to in paragraph (1)” (hereinafter the “Pro-Enemy Expression Materials Clause”).

National Security Act (Amended by Act No. 4373, May 31, 1991)

Article 2 (Definition)

(1)For the purpose of this Act, the term “anti-government organization”means a domestic or foreign organization or group which uses

fraudulently the title of the government or aims at a rebellion against the State, and which is provided with a command and leadership system.

Article 7 (Praise, Incitement, etc.)

(1) Any person who praises, incites or propagates the activities of an anti-government organization, a member thereof or of the person who has received an order from it, or who acts in concert with it, or propagates or instigates a rebellion against the State, with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, shall be punished by imprisonment for not more than seven years.

(3) Any person who constitutes or joins an organization aiming at the act as referred to in paragraph (1) shall be punished by imprisonment for a definite term of one or more years.

(5) Any person who manufactures, imports, reproduces, holds, carries, distributes, sells or acquires any documents, drawings or other expression materials, with the intention of committing the act as referred to in paragraph (1), (3) or (4), shall be punished by the penalty as referred to in the respective paragraph.

Summary of Decision

A. Review of Anti-State Organization Clause

The claim that classifying North Korea as an anti-state organization specified in the Anti-State Organization Clause is an unconstitutional interpretation is nothing more than contesting the admission of facts, subsumptive application of legal norms, or legal interpretation or judgments of courts, which in effect constitutes a violation of the current system designed for control of norms. Therefore, the complaint challenging the Anti-State Organization Clause is nonjusticiable.

B. Review of Pro-Enemy Actions Clause

1. Conformity with void-for-vagueness doctrine required undernulla poena sine legeprinciple

It is fully predictable for addressees of the law that, given the circumstances such as the standoff between the two Koreas and the legislative purpose of the National Security Act, the pro-enemy actions refer to those that cause division of the public opinion and subversion of the regime or that destabilize the principles of popular sovereignty and the rule of law as the foundation of democracy. Also, it cannot be considered that the meaning of individual elements constituting the pro-enemy actions, namely “praise”, “incitation”, “propagation”, and “sympathy”, are unclear, either. Therefore, the Pro-Enemy Actions Clause is not void for vagueness as required by thenulla poena sine legeprinciple, or principle of legality.

2. Protection of freedom of expression

The Pro-Enemy Actions Clause serves a legitimate purpose, as it aims to ensure national safety as well as the survival and freedom of the people by staving off social unrest possibly caused by anti-state organizations or their followers and preemptively blocking the attempts for subversion of the state, etc. Additionally, criminal penalties for those praising, inciting, propagating, or working in concert with the activities of anti-state organizations, etc. provide an appropriate means to achieve such a purpose.

Meanwhile, the 1991 amendment to the Pro-Enemy Actions Clause inserted a subjective element of action that states “with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order”, limiting the applicable scope of the Clause to actions that have a clear and real danger of posing substantial harm to the existence and security of the state or fundamental order. In

light of the unique security environment facing Korea, regulating pro-enemy actions that contain a clear and present danger, if not a concrete danger, does not constitute an excessive breach of the freedom of expression. Therefore, the Clause does not violate the freedom of expression.

C. Review of Joining Pro-Enemy Organizations Clause

The Joining Pro-Enemy Organizations Clause aims to prevent the risks such as subversion of the state through group activities and thereby ensure the safety of the state as well as the survival and freedom of individuals, which is a legislative purpose that is considered legitimate, and heavier penalties for the acts of joining pro-enemy organizations compared to simple pro-enemy actions constitute an appropriate means to achieve the stated purpose.

The activities of a group with organizational power are systematic and have a great impact or influence, serving as a potential trigger for social confusion at any time. Therefore, punishing the act of joining certain groups itself is by no means an excessive restriction on the freedom of expression and association. Thereupon, the Joining Pro-Enemy Organizations Clause does not violate the freedom of expression and association.

D. Pro-Enemy Expression Materials Clause

1. Conformity with void-for-vagueness doctrine required undernulla poena sine legeprinciple

The “documents, drawings or other expression materials” in the Pro-Enemy Expression Materials Clause” refers to every material that depicts one’s personal ideas, opinions, faith, or ideologies in articles, drawings, languages, etc., and holding pro-enemy expression materials practically means having them under one’s control, which is hardly open

for unclear or ambiguous interpretation. Therefore, the Clause is not in violation of the void-for-vagueness doctrine required under thenulla poena sine legeprinciple.

2. Protection of freedoms of expression and conscience

The legislative purpose of the Pro-Enemy Expression Materials Clause lies in preventing social unrest possibly caused by manufacturing, distribution, dissemination, etc. of expression materials and ensuring the safety and existence of the state as well as the survival and freedom of the people, which is considered legitimate. And imposing criminal penalties on manufacturing, holding, distributing or acquiring any expression materials offers an appropriate means.

The Clause is applied only to cases where the actions of manufacturing,holding, distributing or acquiring expression materials have an evident risk of causing substantial harm to the state’s existence and safety and the democratic fundamental order, and the restriction thereof is considered definitely not excessive. It is difficult to exclude the possibility that the pro-enemy contents of such expression materials can be disseminated solely by holding or acquiring such materials. In particular, the materials in electronic format whose use is ever increasing can be distributed in real-time to many, and it is not totally unlikely that they can be communicated or distributed regardless of the will of the person who holds or has acquired them, so it is hardly considered that holding or acquiring pro-enemy expression materials contains a lower risk than manufacturing or distributing thereof. Thus, the Clause is not in violation of the freedoms of expression and conscience.

3. Conformity with principle of proportionality between crime and punishment

It cannot necessarily be concluded that the actions of holding or acquiring pro-enemy expression materials is less legal than other actions

of different types, and that the decision of legislators to have imprisonment as the only statutory punishment is unreasonable. Therefore, applying the same statutory punishment to the actions of holding and acquisition and to those of manufacturing and distribution under the Pro-Enemy Expression Materials Clause is not against the principle of proportionality between crime and punishment.

Summary of Dissenting Opinion by One Justice regarding “Act in Concert with” of Pro-Enemy Actions Clause

A. Conformity with void-for-vagueness doctrine required undernulla poena sine legeprinciple

“Act in concert with” in the Pro-Enemy Actions Clause refers to working in cooperation with or joining the activities of anti-state organizations, etc. by echoing or acting along the same lines of those activities such as propagation and instigation. However, some of the arguments set forth by North Korea in its propagation and instigation activities are not in themselves deemed to threaten the existence, safety, and democratic fundamental order of the Republic of Korea, and it is difficult to define the line that sets the scope for penalties in the case of “echoing along the same lines of anti-state organization activities such as propagation and instigation.” It is also very hard to predict precisely which actions are subject to penalties by viewing the phrases “acting along the same lines of North Korea’s activities such as propagation and instigation” or “working in cooperation with or joining the activities of anti-state organizations, etc.” Hence, “act in concert with” in the Pro-Enemy Actions Clause violates the void-for-vagueness doctrine as a requirement for thenulla poena sine legeprinciple.

B. Protection of freedom of expression

The action of working in concert is a peaceful act of expression that

does not resort to physical violence and which that is far more passive and receptive compared to praising, inciting, and propagating activities, and it has little external impact as it requires no other parties as direct objects. For this reason, punishing the actions of working in concert with anti-state organizations, etc. is, in effect, punishing them for the content or nature of the their position and actions instead of the external risks arising from such position and actions. This amounts to preventing and suppressing the expression of certain ideas or views for reasons that they are subversive and dangerous and are outside the mainstream, which presents an outright challenge to the political ideals of democracy founded upon pluralistic perspectives.

The part “work in concert with” in the Pro-Enemy Actions Clause has forgone the strict interpretation of criminal elements and left open the possibility of autonomy for investigation authorities and courts in deciding whom to punish. This allows for arbitrary discrimination based on ideologies or ideas, as even those who make the same statements can be subject to varying punishments depending on their track records, history, and so forth, and it is not unlikely that the said Clause can be abused or misused as a means of suppressing dissidents or minorities.

Thus, the part “work in concert with” fails to meet the least restrictive means requirement, thereby infringing on the freedoms of expression and conscience, and contravenes the Constitution.

Dissenting Opinions by Three Justices on “Who Holds or Acquires” of Pro-Enemy Expression Materials Clause

The action of holding or acquiring pro-enemy expression materials does not, in itself, contain the possibility of distribution, and it is hardly perceived as a risk to the existence and security of the state. There is only vague and latent possibility for the person holding or acquiring expression materials to disseminate or spread them, and the circulation and dissemination of pro-enemy expression materials can be fully prevented by directly punishing those actions. Imposing punishment at an

earlier stage, namely the actions of holding or acquiring pro-enemy expression materials, constitutes an excessive regulation. This conclusionshould apply the same even to pro-enemy expression materials in electronicformats.

As the criteria for determining whether the person who holds or has acquired pro-enemy expression materials had the intention of engaging in pro-enemy actions is too abstract, subjective, and inconclusive, it becomes possible for investigation authorities or courts to impose arbitrary punishment based on sole consideration of one’s ideological preferences inferred from his or her track records or past history just because he or she held or had acquired pro-enemy expression materials, and it is not completely impossible that the part of Pro-Enemy Expression Materials Clause which provides for the holding or acquiring of materials can be misused or abused as a way of suppressing dissidents or minorities.

Hence, the part “who holds or acquires” in the Pro-Enemy Expression Materials Clause fails to fulfill the least restrictive means requirement, thereby breaching the freedoms of expression and conscience, and violates the Constitution.