Pledge to Abide by the Law Case

[14-1 KCCR 351, 98Hun-Ma425, etc., (consolidated), April 25, 2002]

Contents of the Decision

1. Whether Article 14 of the Ordinance for Parole Review requiring inmates imprisoned for violation of the National Security Act orthe Assembly and Demonstration Act to submit a pledge to abideby the national laws of the Republic of Korea for consideration ofparole release violates the freedom of conscience of these inmates because of the contents of the pledge.

2. Whether Article 14 of the Ordinance for Parole Review violates the freedom of conscience of inmates because of the coercive measuresit employs.

3. Whether Article 14 of the Ordinance for Parole Review requiringonly those inmates imprisoned for violation of the National SecurityAct or the Assembly and Demonstration Act to submit the pledgeto abide by the laws for consideration of parole release violatesthe right of equality of these inmates.

Summary of the Decision

1. The instant pledge which requires certain inmates to declare thatthey would abide by the national laws and respect the constitutionalorder once released on parole is merely a reconfirmation of thegeneral duty duly required of all citizens. It does not require themto think certain new thoughts or perform particular actions under anyhypothetical or actual situation. Therefore, as the instant pledge toabide by the law does not contain any specific or active requirementin its contents, and requirement to submit the pledge is a processonly to confirm the existing constitutional duty of inmates. Requiringsubmission of the pledge does not intrude upon the domain of con-science.

2. Freedom of conscience can only be infringed when there is an unavoidable conflict between moral conviction within an individual'sinner mind and requirements of the external legal order. Whenexisting laws do not prohibit or order certain actions but only offer to give special privileges or recommend certain activities, individuals caneither renounce the opportunity to receive the proffered benefits orrefuse to act according to such recommendation, thus preserving theirconscience without breaching the existing law. Therefore, such lawscannot infringe on the freedom of conscience of individuals.

In the instant case, Article 14 of the Ordinance for Parole Reviewdoes not compel submission of the pledge to abide by the national laws. An inmate considered for parole can refuse to submit suchpledge even if the parole review board requests submission of thepledge for parole review: Whether to submit the pledge or not dependson his own will. Parole is a privilege conferred upon inmates by thelaw enforcement agency according to decisions based on the correc-tional or criminal policy, and it is not a right that every inmate inentitled to. While a prisoner refusing to submit the pledge to abideby the law may not be released on parole because of the instantarticle of the Ordinance for Parole Review, his refusal to submit thepledge would not further weaken his legal standing nor undermine hislegal status in any way.

The instant provision does not levy any new legal duty on suchinmate, nor does it force submission of the pledge with compulsoryperformance, punishment, or imposition of legal disadvantages. There-fore, it does not infringe on the freedom of conscience.

3. North Korea still endeavors to bring about the communistrevolution in the entire peninsula, and to protect itself against suchexternal threats, the government of South Korea has no choice butto defend against North Korea’s attempts at radical revolution inSouth Korea. Illegal activities by individuals aiming to disturb thebasic order of free democracy or overthrow the government, either inalliance with the North Korean government or through independentdecision of its own, have largely been dealt with either the National Security Act or the Assembly and Demonstration Act because of thenature of such activities. It is under such circumstance that theparole review board examines, in addition to things ordinarily takeninto consideration to determine eligibility for parole, whether inmatesimprisoned for violation of the National Security Act or the As-sembly and Demonstration Act are willing to observe the national lawsonce released on parole. Thus, differential treatment of such inmatesis not without a reasonable basis, and is appropriate as a means to achieve the policy objectives.

The purpose of differential treatment of inmates convicted forviolation of the National Security Act or the Assembly and Demon-stration Act is clear and important while the means to achieve thelegislative objective is a mere reconfirmation of the general dutyrequired of all citizens that does not entail any infringement on thebasic rights of citizens. Thus, it is obvious that the principle ofproportionality is observed in the differential treatment of differentgroups, and therefore, the instant provision does not violate theconstitutional principle of equality.

Dissenting Opinion of Justices Kim Hyo-jong and

Choo Sun-hoe

1. Reason that the Constitution protects the freedom of conscienceand domain of protection

In our earlier adjudication concerning the domain of protection forthe freedom of conscience, the Constitutional Court ruled that "con-science" protected by Article 19 of the Constitution includes not onlyone's world view, view of life, ideology, and other beliefs but alsovalue judgments or ethical decisions in one's inner self affectingformation of one's personality. The majority opinion in the instantcase is in conflict with this precedent in that it confines the domainof conscience protected by the Constitution to the sphere of morality,more specifically, to only imminent and specific ethical judgment re- garding one's moral integrity. This is clearly either a limited inter- pretation or overruling of precedent.

Furthermore, the majority opinion prescribes the domain of theconstitutionally protected freedom of conscience using three conditions. Constitutional review based on such deductive reasoning can be usedto limit, instead of extend, the constitutionally protected domain ofthe freedom of conscience when there are only few legal precedents concerning the matter, and hence, should be avoided.

2. Whether requiring submission of the pledge to abide by thelaw falls within the protected domain of the freedom of conscience

A. The majority of Justices in the instant case concludes thatrequiring submission of the pledge to abide by the law "only confirmsand makes citizens vow to uphold their constitutional duty,", and"therefore, it does not intrude upon the domains of conscience." Wedo not object to such a conclusion when applied to ordinary prisoners.However, such a conclusion would not be appropriate when a prisoner,who is holding onto the communist ideology sentenced to life imprison-ment for attempts to overthrow the government by force and violencein violation of the National Security Act, is required to submit such a pledge. No one has the right to overthrow the government usingviolent means. However, it infringes on the freedom of conscienceto force him to confess of or change such ideas as long as the ideas remain in his thoughts.

B. In a free democratic society, the rights of even opponents offree democracy are protected; only their specific actions can be re-strained when they are deleterious to the public interest. The govern-ment must protect itself against extremists trying to overthrow thegovernment via violence and force. In a free democratic society,however, the government can only penalize the opponents of demo-cracy for their "actions"; it should not force them to renounce theirideology or make them pledge to abide by the law against their beliefsusing any form of direct or indirect means of coercion. This is whatdistinguishes a free democratic society from a communist regime.

C. In form, requiring the pledge to abide by the law is differentfrom the ideological conversion programs in the past. However, thereis no practical difference between the two; an inmate imprisoned for violation of the National Security Act for action based on his beliefin communism is required to express an intention to change suchbelief under both programs. Thus, both are used to effectively sepa-rate and isolate individuals with particular ideological beliefs fromones with same beliefs.

D. Even if the concept of conscience used by the majority ofJustices is adopted, an individual can claim the violation of such basicrights as the freedom of conscience and freedom of expression evenwhen he was denied important benefits by the government. Whilethe court will need to examine each case to determine what is suchan important benefit, exclusion of a long-term prisoner from parole consideration is certainly one of such cases because parole may beone of the most important matters in his life.

E. Therefore, requiring submission of the pledge to abide by thelaw for parole consideration is a matter within the domains of thefreedom of conscience protected by Article 19 of the Constitution.

3. Whether requiring submission of the pledge to abide by thelaw violates the freedom of conscience

A. Since requiring submission of the pledge to abide by the lawdirectly affects "a person's world view, view of life, ideology, orother beliefs or values or ethical judgments in one's mind," itdirectly restrains the freedom of mind. In the instant case, while the"expressed action" of refusal to submission of the required pledge is the basis for a sanction by the state, the demand for submission of the pledge by the State forces a formation and confession of certainthoughts. This is not a realization of conscience;. It is ineffectivelycoercion of the formation of certain thoughts.

B. Requiring submission of the pledge to abide by the law isnot based on an act, and the legislature has not delegated detailedrule-making concerning the pledge to the Administrative Branch.Therefore, this is in violation of Article 37(2) of the Constitutionstipulating that freedoms and rights of citizens may be restricted by "acts" only.

C. Even if one argues that requiring submission of the pledge isnot a matter of inner freedom but only a restriction on the freedom torealize conscience, the instant provision fails the proportionality test.

The instant provision of the Ordinance may have a valid legis-lative purpose in that the pledge is used to judge the likelihood ofrecidivism of an inmate. However, appropriateness of the means chosento achieve the legislative purpose is questionable for the followingreasons: First, submission of the pledge may not serve a guaranteeagainst recidivism; and second, it is not clear that those released onparole without submission of the pledge are more likely to be reci-divists.

If requiring submission of the pledge aims to assist judgments whether the released inmate is likely to be a recidivist, the instantprovision excessively restricts freedom of conscience because inter-views or other means used for parole review

of ordinary inmatescould be employed to achieve such a legislative purpose.

An individual asked to submit the pledge in order to be reviewed for parole release suffers a serious conflict of interests: He can either express his intent to change his fundamental belief to be released, orhe can choose to retain his inner belief by remaining silent. Thus,the injury inflicted on conscience by requiring the pledge to abide by the law is far greater than the public interest of acquisition of infor-mation necessary for parole review, and the instant provision failsthe balance of interest test.

Provisions on Review

Ordinance for Parole Review(Amended by Ordinance ofthe Ministry of Justice No. 467 on October 10, 1998)

Article 14 (Procedural Rules; Parole Review)

(1) [omitted]

(2) Inmates imprisoned for violation of the National Security Actor the Assembly and Demonstration Act should be required to submita pledge to abide by the national laws of the Republic of Koreabefore being released on parole, thus ensuring that such prisonerswould observe the laws once they are set free.

(3) [omitted]

Related Provisions

The Constitution

Articles 11(1), 19

Criminal Act

Article 72 (Requirements for Parole)

(1) A person under execution of imprisonment or imprisonment without prison labor who maintains good behavior and has shown sincere repentance may be provisionally released by administrativeaction when ten years of a life sentence or one-third of a limitedterm of punishment has been served.

(2) If a fine or minor fine has been imposed concurrently with thepunishment specified in the preceding paragraph, the amount thereof shall be paid in full in order for the parole to be granted.

Criminal Administration Act

Article 50 (Composition of Parole Review Board)

(1) The review board shall be composed of board members ofnot less than 5 but not more than 9, including the chairman.

(2) The Vice Minister of Justice shall chair the review board, andthe Minister of Justice shall appoint or commission the board membersfrom among judges, public prosecutors, lawyers, public officials be-longing to the Ministry of Justice and persons of learning and ex-perience in correction affairs.

(3) Matters necessary for the review board shall be determinedby the Ordinance of the Ministry of Justice.

Article 51 (Review of Paroles)

(1) In case where a convicted prisoner, who has served a term ofimprisonment under Article 72(1) of the Criminal Act, maintains anexcellent incarceration record and

is deemed not likely to commit a second offense, the warden shall, under the conditions as prescribed by the ordinance of the Ministry of Justice, propose that the review board make an examination of his parole.

(2) The review board shall, when reviewing eligibility for parole,take into account all circumstances such as the convicted prisoner'sage, charge, motive for crime, term of sentence, records of criminaladministration, means of livelihood and living environment after parole,and the likelihood of committing a crime again, etc.

(3) The review board shall, after voting for eligibility for parole,apply for permission for parole to the Minister of Justice within 5 days.

Article 52 (Permission for Parole)

The Minister of Justice may grant permission, when he deems thatthe application for a parole made by the review board under Article 51 is justifiable.

Enforcement Decree of the Criminal Administration Act

Article 153 (Criteria, etc. for Candidates for Parole Review)

The parole review board shall examine a person who has servedthe term as provided in Article 72 (1) of the Criminal Act, and fallsunder one of the following subparagraphs, and shall decide on theapplication for parole:

(ⅰ) A person whose accumulated scores rank at the top of theclass on the review of records of criminal administration; and

(ⅱ) A person who does not fall under subparagraph 1 butis deemed unlikely to commit a crime again and very likely to adapt to society.

Article 156 (Review, etc. of Parole)

Matters necessary for reviewing parole shall be prescribed by theOrdinance of the Ministry of Justice.

Ordinance for Parole Review(Amended by Ordinance ofthe Ministry of Justice No. 467 on October 10, 1998)

Article 3 (Subject of Review)

(ⅰ) The parole review board (hereinafter called "the board") shall take into account the prisoner's personal background, circumstance ofthe convicted crime, existence of persons who can look after the prisoner once released on parole, or other pertinent matters whenreviewing eligibility for parole.

(ⅱ) [omitted]

Related Precedents

3 KCCR 149, 89Hun-Ma160, April 1, 1991

7-1 KCCR 416, 93Hun-Ma12, March 23, 1995

9-1 KCCR 245, 96Hun-Ka11, March 27, 1997

9-2 KCCR 548, 92Hun-Ba28, November 27, 1997

10-2 KCCR 159, 96Hun-Ba35, July 16, 1998

11-2 KCCR 770, 98Hun-Ma363, December 23, 1999

Parties

Complainants

1. Cho O-rok (98Hun-Ma425)

Court-Appointed-Counsel : Lee Kyung-woo

2. Cho O-won (99Hun-Ma170)

Counsel : Lee Jae-myong and 1 other

3. Lee O-chul and 28 others (99Hun-Ma498)

Counsel : Kang Kum-Sil and 9 others

Holding

The complaints filed by Complainants Cho O-rok and Cho O-wonare rejected, and the complaints filed by other complainants are dis- missed.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) 98Hun-Ma425

The complainant was detained for violation of the National SecurityAct on February 2, 1978, and a sentence of life imprisonment wasfinalized on December 26, 1978. He was serving his term at AndongCorrectional Institution when he was excluded from parole release onAugust 15, 1998 for refusing to submit the pledge to abide by thelaw. On November 26, 1998, the complainant filed a constitutionalcomplaint against Article 14(2) of the Ordinance for Parole Review re-quiring inmates imprisoned for violation of the National Security Actto submit the pledge to abide by the law for parole review, allegingthat the provision infringed on his freedom of conscience, the rightto pursue happiness, and the right to equality.

(2) 99Hun-Ma170

The complainant was detained for violation of the National SecurityAct in February, 1993, and received an eight year sentence. He wasserving his term at Chunchon Correctional Institution when he wasexcluded from parole release on August 15, 1998 and again on Feb-ruary 25, 1999 for refusing to submit the pledge to abide by the law.On March 25, 1999, the complainant filed a constitutional complaintagainst Article 14(2) of the Ordinance for Parole Review for the reasonscited in the above case.

(3) 99Hun-Ma498

The complainants received one and a half year to five year sen-tences for violation of the National Security Act between 1996 and1998, respectively. The complainants were excluded from parole on February 25, 1999 for refusing to submit the pledge to abide by thelaw. On August 24, 1999, the complainants filed a constitutionalcomplaint against Article 14(2) of the Ordinance for Parole Review forthe reasons cited in the above case.

B. Subject Matter of Review

The subject matter of review is the constitutionality of Article14(2) (hereinafter called the "instant provision") of the Ordinance for Parole Review (amended by Ordinance of the Ministry of Justice No.467 on October 10, 1998, hereinafter called the "Ordinance on review").The provision and related provisions are as follows:

Ordinance for Parole Review (Amended by Ordinance of the Ministryof Justice No. 467 on October 10, 1998)

Article 14 (Procedural Rules to Check during a Parole Review)

(2) Inmates imprisoned for violation of the National Security Actor the Assembly and Demonstration Act should be required to submita pledge to abide by the national laws of the Republic of Korea be-fore being released on parole, thus ensuring that such prisoners wouldindeed observe the laws once they are set free.

Criminal Act

Article 72 (Requisites for Parole)

(1) A person under execution of imprisonment or imprisonmentwithout prison labor who has behaved himself well and has shownsincere repentance may be provisionally released by administrativeaction when ten years of a life sentence or one-third of a limitedterm of punishment has been served.

Criminal Administration Act

Article 50 (Composition of Parole Review Board)

(3) Matters necessary for the review board shall be determinedby the Ordinance of the Ministry of Justice.

Article 51 (Review of Paroles)

(1) In case where a convicted prisoner, who has served a termof imprisonment under Article 72(1) of the Criminal Act, maintains anexcellent incarceration record and is deemed not likely to commit a second offense, the warden shall, under the conditions as prescribed by the ordinance of the Ministry of Justice, propose that the review board make an examination of his parole.

(2) The review board shall, when reviewing eligibility for parole,take into account all circumstances such as the convicted prisoner'sage, charge, motive for crime, term of sentence, records of criminaladministration, means of livelihood and living environment after parole,and the likelihood of committing a crime again, etc.

(3) The review board shall, after voting for eligibility for parole,apply for permission for parole to the Minister of Justice within 5 days.

Article 52 (Permission for Parole)

The Minister of Justice may grant permission, when he deems thatthe application for a parole made by the review board under Article 51 is justifiable.

Enforcement Decree of the Criminal Administration Act

Article 153 (Criteria, etc. for Candidates for Parole Review)

The parole review board shall examine a person who has servedthe term as provided in Article 72 (1) of the Criminal Act, and fallsunder one of the following subparagraphs, and shall decide on theapplication for parole:

(ⅰ) A person whose accumulated scores rank at the top onthe review of records of criminal administration; and

(ⅱ) A person who does not fall under subparagraph 1 butis deemed unlikely to commit a crime again and very likely to adapt to society.

Article 156 (Review, etc. of Parole)

Matters necessary for reviewing parole shall be prescribed by theOrdinance of the

Ministry of Justice.

Ordinance for Parole Review (Amended by Ordinance of theMinistry of Justice No. 467 on October 10, 1998)

Article 3 (Subject of Review)

(1) The parole review board (hereinafter called "the board") shalltake into account the prisoner's personal background, circumstance of the convicted crime, existence of persons who can look after theprisoner once released on parole, or other pertinent matters whenreviewing eligibility for parole.

2. Complainants' Arguments and Opinion of the Minister

of Justice

A. Complainants' Arguments

Requiring submission of the pledge to abide by the law violates thefreedom of conscience and the right to pursue happiness by formationof a mind free from outside influence because it, in effect, requiresideological conversion, or at the least, compels explicit expression ofthe intent to abide by the national laws. It violates the right ofequality of inmates imprisoned for violation of the National SecurityAct or the Assembly and Demonstration Act as only these inmates,and not other prisoners incarcerated for other crimes, are required tosubmit the pledge in order to obtain review by the parole board.

In addition, the instant provision is in violation of Article 37(2) ofthe Constitution because it does not have a legitimate purpose, does notemploy appropriate means to achieve the legislative purpose, and ex-cessively restricts the basic rights of individuals. It is also against Article 12(1) of the Constitution stipulating due process of law.

B. Opinion of the Minister of Justice

The instant provision does not directly infringe on the basic rightsof the complainants. Moreover, since the basic rights of the com-plainants are no longer being violated because they had all beenreleased after filing of the constitutional complaints, the complaint has become moot and is unjustified. The pledge necessary for parole con-sideration does not require an inmate to renounce his former belief,and whether to submit the pledge or not is entirely up to the inmate.Thus, requiring submission of the pledge does not infringe on the basic rights and freedom of conscience of an inmate. Unlike othercriminals, a so-called political criminal is convinced that violation ofexisting laws through his actions is justified, and he objects to theexisting legal order in a systematic fashion. Thus, differential treat-ment of such prisoner from other inmates in making judgment aboutthe likelihood of recidivism has a reasonable basis, and does not vio-late the principle of equality. Requiring the pledge to abide by thelaw is necessary to make an accurate judgment about the likelihood of recidivism of inmates imprisoned for violation of the National SecurityAct. It is appropriate as a means to achieve such legislative pur-pose, and infringement on the basic rights is minimal as such require-ment does not intrude upon inner freedom nor compel formation ofcertain decisions. The instant provision serves to protect the impor-tant national interest by the proper criminal administration to per-petrators of the public

security related laws, and the private interestat hand, namely disadvantage suffered by inmates required to submitthe pledge to abide by the law, is negligible. Therefore, there is abalance between the public interest being protected and the basic rightsbeing infringed, and the principle of proportionality is observed.

3. Review

A. Legal Prerequisites

(1) Directness

In order for a statutory provision to be the subject for a consti-tutional complaint, the complainants must directly and presently sufferinfringement on their own basic rights by the provision without anyspecific intermediary administrative disposition. Here, directness ofinfringement of the basic rights implies that there has been a restric-tion of freedom, levying of duties, or deprivation of rights or a legal status by the statute itself, not by a particular disposition of an ad-ministrative agency (11-2 KCCR 593, 605, 98Hun-Ma55, November 25,1999). Existence of a specific administrative action enforcing a statute,however, does not always prohibit filing of a constitutional complaintagainst a statutory provision. Even if there was an administrativedisposition to enforce the statutory provision, an individual can file a constitutional complaint under the following conditions as long as theadministrative action is based on the statutory provision: when thereis no remedy process to relieve citizens from the infringement on theirrights or interests by illegal disposition of an administrative agency; or even if there exists a remedy process, when the prospect of relief of individual rights through such process is dismal and when it onlyforces the individual to take an unnecessary detour (9-2 KCCR 295, 304,96Hun-Ma48, August 21, 1997; 11-2 KCCR 593, 606, 98Hun-Ma55,November 25, 1999).

In the instant case, the parole review board would first selectinmates who could be ultimately set free on parole amidst a group ofprisoners who have been incarcerated for violation of the NationalSecurity Act or the Assembly and Demonstration Act, have served theminimum imprisonment term required to be considered for parole, andhave kept up an excellent behavioral record during the imprisonmentterm. The instant provision is applied to inmates only when the board requests the submission of the pledge to inmates screened and selected.Request for submission of the pledge, however, is only an intermedi- ary measure to collect necessary information to make a final decisionwhether to release someone on parole. The requisitioned inmate needsnot obey such request nor would he be automatically released on paroleupon submission of the pledge. The private interest of an inmatewould be affected not by the request to submit the pledge but by thefinal decision of the Minster of Justice to release him on parole ornot. Thus, request for submission of the pledge by the parole reviewboard is an intermediary measure recommending or suggesting submis-sion of the pledge, and it is not an independent administrative dis-position that would be subject to an administrative litigation. Then, it cannot be expected that the complainants institute an administra- tive litigation against the request to submit the pledge by the parolereview board or take other measures to relieve the infringement oftheir rights before filing the instant constitutional complaint. Then,prerequisite of directness cannot be denied just because the com-plainant did not take other steps to remedy the infringement, and theinstant constitutional complaints are all valid in terms of directnessof infringement of the basic rights.

(2) Justiciable Interest

The complainants' sentences were suspended 98Hun-Ma425 and99Hun-Ma170 cases on February 25, 1999 and on August 15, 1999,respectively. Complainants Lee O-chul, Jung O-jae, Yoon O-joon, ChunO-eun, Bae O-kyun, Yang O-hoon, Jang O-sang, Cho O-byung, Kim O-hak, Roh O-cho, Park O-seo, Lee O-yeol, Kim O-joon, Kim O-soo,Kim O-hee, Kim O-seok, Jang O-seop, Min O-woo, Park O-eun werereleased on suspension of sentences on August 15, 1999, and Com-plainant Kim O-jung was released on suspension of sentences on De-cember 31, 1999. Complainant Choi O-joo was released on February29, 2000 upon the completion of the prison term, and Complainants LeeA-chul, Na O-young, Jung O-hong, Lee O-gu, Kim O were released on suspension of sentences on August 15, 2000. Complainants Kang O-won, Jung O-chan, Jung O-ki were all released upon the comple-tion of the prison terms between July 13, 2001 and August 3, 2001,respectively.

Since all complainants are released, requiring the submission of thepledge to abide by the law would no longer pose any constitutionalproblem for the complainants, and the complaints have become moot. However, a constitutional complaint has not only a subjective func- tion of providing relief for infringement on individual rights but also an objective function of defending and maintaining the constitutional order. Even if the complaints have become moot during the review, the Court needs to recognize the existence of an objective justiciableinterest when the infringement on the basic rights is likely to berepeated and a constitutional clarification of the matter has an impor-tant meaning for the defense and maintenance of the constitutionalorder (3 KCCR 356, 367, 89Hun-Ma181, July 8, 1991; 4 KCCR 51,56-57, 91Hun-Ma111, January 28, 1992). Requiring the submission ofthe pledge to abide by the law is likely to repeat, and adjudicationon the constitutional validity of such a requirement would bear animportant meaning for the defense of the constitutional order. There-fore, the justiciable interest is still recognized in the case.

(3) Filing Time Limit

(A) 98Hun-Ma425

The parole review board demanded the complainant to submit thepledge to abide by the law before excluding him from parole onAugust 15, 1998. Then, the complainant must have known that there was an infringement on his basic rights following his refusal to submitthe pledge by August 15, 1998. According to the court record, theconstitutional complaint in the case was filed on November 26, 1998, and it is apparent that the complaint was filed over sixty days after the cause of the grievance was known. This would make the com- plaint unfit for constitutional review. However, the complainant didnot file a complaint against an administrative disposition, but againstthe provision of the Ordinance which forms the basis for such a dis- position. Since the provision was promulgated and entered into forceon October 10, 1998 (In fact, the provision in question was beingapplied even before it was promulgated), the instant constitutionalcomplaint was filed before tolling of the statute of limitation.

(B) 99Hun-Ma170

The complainant was excluded from parole on August 15, 1998 andagain on February 25, 1999 for refusing to submit the pledge to abide by the law. Then, the complainant must have known the existence of the cause of an infringement on his basic rights following his refusalto submit the pledge by February 25, 1999. According to the courtrecord, the constitutional complaint in the case was filed on March 25,1999, and it is apparent that the complaint was filed before tolling ofthe statute of limitation for a constitutional complaint.

(C) 99Hun-Ma498

The complainants were excluded from parole release on February25, 1999 for

refusing to submit the pledge to abide by the law. The complainants must have known the existence of the cause of an in- fringement on their basic rights following their refusal to submit the pledge by February 25, 1999. According to the court record, the con-stitutional complaint in the case was filed on August 24, 1999, andit is apparent that the complaint was filed after tolling of the statuteof limitation for a constitutional complaint expired.

(4) Sub-conclusion

While other complaints meet the legal prerequisites of directnessand existence of justiciable interest, the complaint in 99Hun-Ma498case was filed after tolling of the statute of limitation, and therefore,shall be dismissed.

B. Review on Merits

(1) Infringement on the Freedom of Conscience

Article 19 of the Constitution stipulates that "All citizens shallenjoy the freedom of conscience." Constitutionally protected con-science refers to a specific and dire state of mind: It refers to astrong and sincere inner voice that his moral integrity will disinte-grate if the individual does not take certain actions after judging therights or wrongs of a matter. It does not refer to conscience as anobscure or abstract concept (9-1 KCCR 245, 263, 96Hun-Ka11, March27, 1997).

Freedom of conscience, so-called starting point for any personalfreedom, serves to guarantee the moral identity of an individual nec-essary for maintenance of human dignity and unhindered developmentof individual personality. However, not every action based on an innerdecision belong to the domain of the freedom of conscience protectedby the Constitution. Before making judgments about whether there was an infringement on the freedom of conscience, we need to firstdetermine the constitutionally protected domain of the freedom of con-science. We should approach this problem by examining conditionsand the degree of protection when there is a conflict between anaction (or an inaction) based on the conscience of an individual andthe requirements of the positive law.

In this light, conscience is protected by the Constitution under the following conditions: First, the content of the positive law in questionshould deal with a matter related to the domains of conscience.Second, compulsory legal measures such as coercion of performance,punishment, or imposition of legal disadvantages should follow anyviolation of such law. Third, perpetration should be a result of com-mand of conscience. We shall examine whether the requirement ofthe submission of the pledge to abide by the law encroaches uponfreedom of conscience under this guideline.

(A) Contents of the Pledge to Abide by the Law and the Domainsof Conscience

Observance of the legal order of a state by its citizens forms theideological basis for the existence and function of the state. In a freedemocratic government governed by the rule of law, freedom of mindand freedom to criticize the existing legal order are duly protected, andthere exists the means to change or amend the Constitution and other laws through a legitimate process. Existence of such the government, however, is dependent on the autonomous participation and observanceof the legal order by its citizens. Therefore, while there is no ex-plicit provision in our Constitution stipulating such duty, it is thebasic duty of all citizens to abide by the Constitution and other lawsof the state.

Contents of the pledge to abide by the law required by the instantprovision include the "vow to respect the national legal order of theRepublic of Korea." An inmate needs to fill out his name, Koreanidentification number, convicted crime, circumstance of conviction aswell as sentence, pledge to abide by the established legal order of theRepublic of Korea, future life plan, and other statements if desired.There is no standardized form of expression for the pledge, and inpractice, most inmates simply write that "they will abide by thelaws of Korea".

As seen above, it is clear that all citizens have a general duty toobserve the laws of the state under the Constitution. The instantpledge which requires certain inmates to declare that they would abide by the national laws and respect the constitutional order once releasedon parole is merely a reconfirmation of the general duty duly requiredof all citizens. It does not newly require them to think certainthoughts or perform particular actions under any hypothetical or actualsituation. The instant pledge to abide by the law does not contain anyspecific or active requirement in its contents, and the requirement tosubmit the pledge is a process only to confirm the existing constitu- tional duty of inmates. Therefore, requiring submission of the pledgedoesnot intrude upon the domain of conscience.

Among the complainants are some long-term prisoners who haverefused to renounce their beliefs in communism. They may be con-vinced that the contents of the National Security Act are contrary totheir political beliefs or that the free democratic regime is against theirideologies, and their such beliefs may be known to others. However,as long as the contents of the pledge used for parole review require nothing more than what has been described above, such pledge doesnot touch upon the domains of conscience. Basically, the Constitutiondoes not protect anyone's right to overthrow the existing legal orderor a free democratic order using such unconstitutional means as forceor violence with vehement disrespect for the Constitution or other lawsof the land. Requiring submission of a pledge to abide by the exist- ing legal order or to respect the extant constitutional regime does notviolate any constitutionally protected freedom or right, including the freedom of conscience.

(B) Legally Compelled Submission of the Pledge to Abide by the

Law and Violation of the Freedom of Conscience

Freedom of conscience can only be infringed when there is anunavoidable conflict between moral conviction within an individual'sinner mind and the requirements of the external legal order. When existing laws do not prohibit or order certain actions but only offertogive special privileges or recommend certain activities, individuals can either renounce the opportunity to receive the proffered benefitsor refuse to act according to such recommendation, thus preservingtheir conscience without breaching the existing law. To declare thatthere is a violation of the freedom of conscience by the demand ofan existing legal order, the law being enforced should impose a newlegal duty that did not exist beforehand, and failure to observe the lawshould be dealt with such compulsory legal measures as compulsoryperformance, punishment, or imposition of legal disadvantages. Here,imposition of a legal disadvantage does not mean infringement onindividual rights, but it refers to change in the current legal statusor standing for the worse toward the future, such as deprivation of anexisting legal status or worsening of legal standing of an individual.

In the instant case, Article 14 of the Ordinance for Parole Reviewdoes not compel submission of the pledge to abide by the national laws.An inmate considered for parole can refuse to submit such pledgeeven if the parole review board requests submission of the pledge forparole review: Whether to submit the pledge or not depends on his own will. Parole is a privilege conferred upon inmates by the lawenforcement agency according to decisions based on the correctional orcriminal policy, and it is not a right that every inmate in entitled to(7-1 KCCR 416, 422, 93Hun-Ma12, March 23, 1995).

Parole is aprivilege or benefit that an inmate incidentally enjoys when the lawenforcement agency decides that parole is appropriate. While aprisoner refusing to submit the pledge to abide by the law may not be released on parole because of the instant article of the Ordinancefor Parole Review, his refusal to submit the pledge would not further weaken his legal standing nor undermine his legal status in any way.He only needs to serve the remaining term of imprisonment. Theinstant provision does not levy any new legal duty on such inmate,nor does it force submission of the pledge with compulsory perfor-mance, punishment, or imposition of legal disadvantages. Therefore, it does not infringe on the freedom of conscience.

The instant provision of the Ordinance essentially pronounces thatthere will be no parole unless the pledge is submitted. While theprovision does not force submission of the pledge against one's con-viction with punishment, or imposition of legal disadvantage, the pro-vision uses parole release, one of the most instinctive desires of any inmate, as a bait to lead inmates to submit the pledge. Such prac-tice may seem to violate the freedom of conscience of some long-termprisoners who are convinced that they should not recognize the legalorder of the Republic of Korea because of their political beliefs orideologies. However, it would be inaccurate to conclude that there isan infringement on freedom of conscience only because the bestow- ment of certain benefits is contingent upon performance of an action or inaction based on free will.

In implementing its policy, including its criminal administrationpolicy such as parole, a state can decide to confer benefits to only a limited number of citizens satisfying predetermined qualifications.

When a provision does not legally compel performance of a cer- tain action but is only employed to decide whether to bestow certainbenefits, such provision does not infringe on freedom of conscience,even though conferred benefit might be very critical and it is painfulto give up the opportunity to receive such benefit. The only consti-tutional problem in such case is whether it violates the principle ofequality in bestowing such benefits.

In summary, submission of the pledge to abide by the law basedon the instant provision is merely a precondition to receive benefit ofparole release, and each inmate is free to choose to meet eligibilityrequirement for this benefit following his inner voice.

(2) Violation of the Due Process Clause

Article 12(1) of the Constitution stipulates that "No person shall bepunished, placed under preventive measures or subject to involuntarylabor except as provided by statute and through due process of law."Due process of law, an independent constitutional principle incorpo-rated into the Constitution by the above provision, implies that notonly formal procedure but also substantive contents of the law need to be reasonable and just. Under the principle, infringement on life,freedom, and property of citizens by any governmental power can only be allowed through legitimate procedures based on reasonable and justlegislation (9-1 KCCR 509, 515, 96Hun-Ka17, May 29, 1997).

In the instant case, the instant provision of the Ordinance con-cerning the pledge to abide by the law does not infringe on thefreedom of conscience of an inmate as seen above. Then, we neednot look further to determine that the there does not exist any vio-lation of the principle of due process of law; the principle applies onlywhen there is an encroachment of basic rights such as infringement on life, freedom, or property.

(3) Violation of the Right to Parole

Article 72(1) of the Criminal Act stipulates that "A person under execution of

imprisonment or imprisonment without prison labor whomaintains good behavior and has shown a sincere repentance may beprovisionally released by administrative action when ten years of alife sentence or one-third of a limited term of punishment has beenserved." Parole as used in this provision refers to the release of aprisoner before the expiry of a sentence, based on good behavior duringhis prison term, to promote successful integration of an inmate intothe general society. It is an administrative disposition based on thecriminal administration policy to avoid unnecessary confinement of anindividual who deeply regrets his crime and to encourage inmates to strive to achieve a sense of moral integrity. The chairperson of theparole review board established at each correctional institution appliesfor permission for parole of an inmate to the Minister of Justice, andthe Minister of Justice may grant permission, when he deems thatthe application for parole made by the review board is justifiable(Article 51 and 52 of the Criminal Administration Act). The boardmembers shall take a vote to decide whether it is appropriate torequest parole for a particular inmate before the chairperson of theboard applies for permission for parole of an inmate to the Ministerof Justice. In order for an inmate to be considered for parole bythe board, the inmate needs to have served at least one-third of thesentenced term, and he either needs to be one of the most well be-haved inmate or the chairperson of the board must have determinedthat he should be considered for parole. Once a list of candidates tobe considered for parole are selected, the board determines whether to apply for permission for parole for a particular inmate after con-sidering diverse factors such as the convicted prisoner's age, con-victed crime, criminal motive, term of sentence, criminal administration record, means of livelihood and living environment after parole release,and the likelihood of recidivism. As explained here, an inmate is notbeing released on parole based on an individual request or desire forparole release. Rather, parole is a privilege conferred upon an inmateby the law enforcement agency according to decisions based on correc-tional or criminal policies. An inmate who has met requirements pre-scribed in Article 72(1) of the Criminal Act does not automaticallyobtain a subjective right to demand parole release, and the adminis-trative authority is not legally bound to release the inmate on parole.An inmate can enjoy the benefit of release before the expiry of his sentence only when there is a specific administrative disposition torelease an inmate on parole based on Article 72(1) of the CriminalAct (7-1 KCCR 416, 421-422, 93Hun-Ma12, March 23, 1995)

As seen above, an inmate does not have the subjective right todemand parole, and hence, the instant provision does not infringeupon the right to parole.

(4) Violation of the Right of Equality

(A) Standard of Review

Whether a strict or relaxed standard is to be used for equalityreview of a particular case depends on the scope of the legislative-formative power given to the legislature. Those cases where theConstitution specifically demands equality shall be scrutinized under a strict standard. If the Constitution itself designates certain standardsnot to be used as basis for discrimination or certain domains in whichdiscrimination shall not take place, strict scrutiny should be employedto determine whether there is discrimination. Next, if differentialtreatment causes a great burden on the related basic rights, thelegislative-formative power shall be curtailed, and strict scrutiny shouldbe used for the constitutional review of the case(11-2 KCCR 770, 787, 98Hun-Ma363, December 23, 1999).

The instant provision deals with the review procedure for parole review, and the criminal administrative authority is allowed a large degree of discretion in the matter. Moreover, the Constitution doesnot explicitly proscribe discrimination in this field. As

seen above, theinstant provision concerning the pledge to abide by the law does notinfringe on the freedom of conscience or other basic rights of the com-plainants, and thus, there is no burden on the related basic rightscaused by differential treatment. Therefore, constitutional review ofthe instant provision does not require use of a strict standard, and it suffices to use a relaxed standard to determine reasonableness of theprovision.

(B) Legislative Purpose of Requiring Submission of the Pledge

to Abide by the Law

Since its inception, the Republic of Korea has confronted NorthKorea, and under such special conditions of the nation, many persons have been imprisoned for violation of the public security laws. Manyinmates incarcerated for violation of the public security laws have either remained hostile or disapproved the constitutional regime ofthe Republic of Korea. Considering such tendency of these inmates, the instant statutory provision requires them to pledge allegiance to the existing constitutional order to the maximum degree permissibleunder the Constitution in order to preserve the existing constitutional system of the Republic of Korea. It replaced the ideological convert- sion program requiring inmates imprisoned for violation of the publicsecurity laws such as the National Security Act to renounce their beliefin communist ideologies. The present requirement of submission of the pledge aims to silence criticism on the past ideological conversion pro-gram that it violated the freedom of conscience. It also aims tosatiate the consitutional requirement only by reconfirming the duty toabide by the law that is duly required of all citizens while relieving the psychological burden of inmates subject to parole review.

(C) Proportionality in Differential Treatment

The instant provision does not require all inmates to submit the pledge to abide by the law regardless of their convicted crimes, but only demand the pledge from those inmates imprisoned for perpetra-tion of the National Security Act and the Assembly and DemonstrationAct for parole consideration.

North Korea still endeavors to bring about a communist revolutionto the entire peninsula, and to protect itself against such externalthreats. The government of South Korea has no choice but to defendagainst North Korea’s attempts at a radical revolution of South Korea.Illegal activities by individuals aiming to disturb the basic order of freedemocracy or overthrow the government, either in alliance with theNorth Korean government, or through independent decision of its own,have largely been dealt with either the National Security Act or theAssembly and Demonstration Act because of the nature of such ac- tivities. It is under such circumstance that the parole review board examines, in addition to things ordinarily taken into consideration todetermine eligibility for parole, whether inmates imprisoned for viola- tion of the National Security Act or the Assembly and DemonstrationAct are willing to observe the national laws once released on parole.Thus, differential treatment of such inmates is not without a reason-able basis, and is appropriate as a means to achieve the policyobjectives.

The purpose of differential treatment of inmates convicted for vio-lation of the National Security Act or the Assembly and Demonstra-tion Act is clear and important while the means to achieve the legis-lative objective is a mere reconfirmation of the general duty requiredof all citizens that does not entail any infringement on the basic rightsof citizens. Thus, it is obvious that the principle of proportionality isobserved in differential treatment of different groups, and therefore, theinstant provision does not violate the constitutional principle of equality.

4. Conclusion

The complaints filed by complainants Cho O-rok and Cho O-wonare rejected, and

the complaints filed by other complainants are dis- missed.

This decision is pursuant to the consensus of all justices exceptJustice Kwon Seong who wrote a concurring opinion and Justices KimHyo-jong and Choo Sun-hoe who wrote a dissenting opinion.

5. Concurring Opinion of Justice Kwon Seong

A. We can demarcate the domain of the freedom of consciencenot overlapping with the domain of the freedom of religion, freedomof ideology, or general freedom of action and call them the "originaldomain of the freedom of conscience." Conscience within the originaldomains, then, indicates the inherent mentality of each person recog-nizing what is good or bad and pursuing what is good. In other words,it refers to the human instinct recognizing and judging good or evil,and selecting and deciding to act for what is good in the moral sphere.In this sense, internal decision about academic or artistic problems is not an issue of conscience, and political ideologies and beliefs as well as religious tenets and principles that are not directly associated with the issue of moral good or bad is not within the domain of the free-dom of conscience.

Constitutional freedom generally refers to freedom from interfer-ence or coercion by the state. Coercion followed by punishment orlegal disadvantage when an individual refuses to comply with the de-mands of the State, and continued interference to disturb the inner peaceof an individual are some examples of infringements on the freedom.

B. It does not infringe on the freedom of conscience of citizensfor the state to recommend or induce citizens to act for what is goodand stay away from what is evil. However, it is encroachment onthe freedom of conscience if the state decides what is good or bad forcitizens and forces citizens to accept such decisions. Judgment ofgood or bad must ultimately be left with each individual, and in thisregard, freedom of conscience implies that each individual should beable to autonomously decide what is good or bad for himself.

Freedom of conscience also includes freedom to act on what anindividual believes is good.

Finally, freedom of conscience includes freedom not to be ques- tioned about the contents of conscience.

C. Freedom of conscience defined in the above manner would bein direct conflict with the positive law when an individual deems some-thing good and decides to act on it when the existing legal order hasdeclared it evil, or when an individual decides that something is eviland refuses to act on it when the existing legal order has declaredit good.

Choice or decision mentioned here does not merely refer to per-sonal preference of each individual, but rather, to an unalterable ethical resolution of an individual based on his decision to choose good or bad.It refers to a decision based on conviction about one's ethical andmoral identity that would lead a person to declare "I would not be ahuman being if I do such an evil thing or I would not be a humanbeing if I don't act".

Some provisions of the existing law reflect judgments on goodand evil by members of the society. When the court concludes that ithas no choice but to apply such provisions, individuals who violatedsuch provisions will not be able to avoid punishment. The issue ofthe freedom of conscience arises in such occasion when there is adirect conflict between the judgment of the majority and the minor-ity about what is good or bad. Since it is in effect tantamount topunishment of the minority disagreeing with judgment of the majority,the principle of protection of the minority could become another im-portant issue here.

D. As noted by the majority of Justices, the instant provision whichrequires certain inmates to declare that they would abide by the na-tional laws and respect the constitutional order once released on paroleis only a reconfirmation of the general duty duly required of allcitizens. Requiring submission of such pledge does not force the com-plainants to make a judgment on good or evil and then disclose theresult of such judgment. Therefore, requirement of submission ofthe pledge is not within the domain of the freedom of conscience.

The complainants in the case were imprisoned for violation of the National Security Act. They violated the law to pursue political be-liefs or to achieve political objectives of their preference. They refusedto submit the pledge stating that they would not commit such crimesagain after being released because such pledge was contrary to theirpolitical beliefs. Generally, refusal of submission of such pledge is toshow off and reconfirm their firm and unchanging political beliefs.It could be interpreted as a strategic choice following the conclusion that it would be more advantageous to achieve their political objec- tive to act that way. On the contrary, there is not enough evidence in the case to conclude that refusal to submit the pledge was based on their attempt to protect their ethical and moral identity as humanbeings. It seems that the complainants' refusal to submit the pledgeto abide by the law is not based on their conscientious, or moral,judgment that to submit the pledge would be an evil thing to do.In conclusion, their refusal to submit the pledge had nothing to dowith conscience.

6. Dissenting Opinion of Justices Kim Hyo-jong and

Choo Sun-hoe

We do not agree with the majority of Justices about the protecteddomain of the freedom of conscience. We believe that the pledge toabide by the law also lies within the constitutionally protected domainof the freedom of conscience. We conclude that it is unconstitu-tional to limit this freedom based not on statute but on an ordinanceof the Minister of Justice, and that the instant provision requiringsubmission of the pledge violates the principle of the proportionality.

A. Reason that the Constitution Protects Freedom of

Conscienceand the Domain of Protection

(1) Reason that the Constitution Protects Freedom of

Conscience

In a free democratic state, the governmental authority retains itslegitimacy only when it guarantees the basic rights of its citizens.Authority of the state is derived from citizens. But at times, the statemay wield its authority to the disadvantage of particular individuals to protect and preserve the community. Individuals will accept suchdisadvantage only when their is a common understanding that no basicright can be restricted without any overriding public interest.

Among basic rights, freedom of conscience retains a special stand-ing. When there is a conflict between an individual and the state,freedom of conscience, especially freedom of mind, constitutes the lastprotection for individuals that should not be intruded upon by the state,no matter how great the public need is. Therefore, in order for eachcitizen to enjoy human dignity, be assured of his worth, and to pre-serve his fundamental morality and personal beliefs, the state needs toguarantee freedom of conscience above everything else. This is the basic condition of, or demand for, a free democratic state.

(2) Domain of Protection for Freedom of Conscience

(A) In its earlier adjudication concerning the domain of protec-tion for freedom of conscience, the Constitutional Court ruled that"conscience" protected by Article 19 of the Constitution includes notonly one's world view, view of life, ideology, and other beliefs but alsovalue judgments or ethical decisions in one's inner self affecting for- mation of one's personality. Freedom of conscience includes freedomof inner thought which precludes the state from intervening on peo- ple's ethical judgment about right or wrong as well as good or evil. It also includes freedom not to be forced by the government to pub-licly disclose one's ethical judgment (3 KCCR 149, 153-154, 89Hun-Ma160, April 1, 1991; 9-2 KCCR 548, 571, 92Hun-Ba28, November 27, 1997; 10-2 KCCR 159, 166, 96Hun-Ba35, July 16, 1998).

The domain of conscience, then, is broader than that of a choicebetween a moral good or evil. The Court has explicated the reasonsfor recognizing such broad scope of conscience as follows:

"“Such interpretation would be pursuant to our Constitution which,unlike the constitutions of other nations, has an independent articleexplicitly stipulating protection of freedom of conscience while distin-guishing it from freedom of religion and separating it from freedom ofthoughts. This is declaration of the principle that the state wouldnot intrude upon freedom of inner thoughts, nor interfere with one'svalue judgment. It is to better protect freedom of mental activities,a basis of democracy, which should not be abridged by any stateauthority and which has been an essential element for progress anddevelopment of the human race. Article 18 (2) of the InternationalCovenant of Civil and Political Rights (so-called "International HumanRights Covenant B") that the Republic of Korea acceded to in 1990 stip-ulates that no one shall be subject to coercion which would impairhis freedom to adopt belief of his choice.” (3 KCCR 149, 153-154,89Hun-Ma160, April 1, 1991)

Therefore, the protected domain of freedom of conscience dose notinclude only morality choices between good or evil. It also includesone's world view, ideology, or other beliefs. This bears importantsignificance in the adjudication of the matter. That is the reason theConstitutional Court concluded that an order of public apology is anissue within the domain of the freedom of conscience (3 KCCR 149,153-154, 89Hun-Ma160, April 1, 1991)

The Court has recognized a broad scope of freedom of consciencebecause the Constitution does not have an independent article to pro-tect freedom of thoughts or ideology and because freedom of con-science is an important basis of democracy.

(B) The majority opinion in the instant case, however, is in con- flict with the precedent of this Court in that it confines the domain ofconscience protected by the Constitution to the sphere of morality, morespecifically, to only imminent and specific ethical judgments regard-ing one's moral integrity. This is clearly either limited interpreta-tion of or overruling of precedent.

The majority of Justices does not cite the aforementioned prece-dent about the domain of conscience. Rather, the majority of Justices quotes the ruling on the refusal to take the breathalizer test (96Hun- Ka11), and adds new conditions to recognize that there is an issue ofthe freedom of conscience involved in a particular case. The majorityof Justices concludes that constitutionally protected conscience refersto "a specific and dire state of mind" necessary to preserve "one'sethical and moral identity." Such view limiting the domain of con-stitutionally protected conscience is not in harmony with the afore-mentioned precedent, and it is contrary to the ruling of this precedent that included not only moral conscience, in the narrow sense, but alsoone's world view, view of life, ideology, or other beliefs within the constitutionally protected domain of

conscience. If conscience pro-tected under the Constitution only refers to "a specific and dire stateof mind" necessary to preserve "one's ethical and moral identity," theCourt would have reached at a different conclusion on the case con-cerning the order of public apology (89Hun-Ma160 case). The prece-dent on the order of public apology was adjudicated based on theCourt's view that concept of conscience has a broader scope than whatthe majority of Justices in the instant case is willing to recognize.

(C) Furthermore, the majority opinion prescribes the domain of the constitutionally protected freedom of conscience using three conditions.As the second condition, it requires that "Compulsory legal measuressuch as compulsory performance, punishment, or imposition of legaldisadvantage should follow violation of the law." We are deeply con-cerned about reasonableness and effectiveness of this conclusion.

The Court rendered but very few decisions about the freedom ofconscience thus far. Under such circumstance, attempts to define the concept based on deductive reasoning may not be appropriate. Free-dom of conscience is a very sensitive issue dealing with the inner mindof individuals in connection with the state authority. By defining the freedom of conscience as such, the Court may be binding itself to onlysuperficial or conceptual examination of cases concerning freedom ofconscience. If above definition of conscience is adopted, the Courtwould only look at each case to determine whether a given case meetsthree conditions required to make it an issue of constitutionally pro-tected conscience: The Court would not look at each case in itsentirety respecting individual and specific circumstance of each case. This may lead to rulings far from existing realities in cases of such an important and sensitive basic right as the freedom of conscience.

Such approach is also contrary to the generally adopted methodof constitutional interpretation, namely, "constitutional interpretationthrough specific cases." Constitutional review based on such deductivereasoning can be used to limit, instead of extend, the protected domainof the freedom of conscience.

The Constitution is the supreme law of the land that takes an openand abstract form. The Constitution has taken such form to giveenough room for appropriate constitutional interpretation for diverserelations over many generations to come. It would be inappropriate for the Court to define the domain of constitutionally protected basic rights based on deductive reasoning when there are not enough pre- cedents accumulated about the issue.

B. Whether requiring submission of the pledge to

abide by the law is an issue within the protected

domain of the freedom of conscience

(1) The majority of Justices in the instant case concludes thatrequiring submission of the pledge to abide by the law "only confirmsand makes citizens vow to uphold their constitutional duty", and"therefore, it does not intrude upon the domains of conscience."

We do not object to such a conclusion when applied to ordinaryprisoners. However, such a conclusion would not be appropriate whena prisoner, who is holding onto the communist ideology sentenced tolife imprisonment for attempts to overthrow the government by forceand violence in violation of the National Security Act, is required to submit such pledge for parole.

The majority of Justices concedes that there may be some long-term prisoners who have refused to renounce their beliefs in com-munism among the complainants and they may firmly believe that thecontents of the National Security Act are contrary to their political beliefs or that a free democratic regime is against their ideologies.They, however, conclude that "the Constitution does not protect any- one's right to

overthrow the existing legal order or a free democraticorder using such unconstitutional means as force or violence, and suchpledge to abide by the law or respect the existing constitutional regimedoes not violate any constitutionally protected freedom or right, in-cluding freedom of conscience."

Such conclusion is contrary to the Constitution guaranteeing free-dom of conscience, and there is also a gap in the argument’s logic.

Certainly, no one has the right to overthrow the government usingviolent means; However, it infringes on the freedom of conscience toforce him to confess or change such idea as long as the idea remains in his thoughts. It would be hard to argue that there is no infringe-ment on the freedom of conscience when requiring submission of thepledge to bide by the law, albeit in effect or indirectly, forces anindividual with a particular world view or ideology to change his innerbeliefs.

We cannot readily agree with the claim that "such pledge toabide by the law or respect the existing constitutional regime doesnot violate any constitutionally protected freedom or right, including the freedom of conscience."

Neutrality of the State on the world view or ethical judgment is precondition on guaranteeing the freedom of conscience. Freedom ofconscience is based on the understanding that no matter what kind ofworld view or moral belief an individual has, the state should not forcehim to adhere to a certain world view or moral belief and that the state must tolerate individual's choice on the matter. In principle,freedom of conscience and freedom of expression of even those indi-viduals who may prefer a regime that may not be free nor demo-cratic are protected to a certain extent under the constitution of afree democratic society. In other words, in a free democratic society,conscience and expression that may not be in harmony with the ex- isting free democratic regime are protected.

(2) Protection of the free democratic basic order is one of thesuperior values of the Constitution. While the Constitution is basedon moral relativism, the state is justified to restrain actions that maybe harmful to a free democratic basic order. Under the free demo-cratic regime, diverse opinions about ideologies and beliefs are notindiscriminately ignored nor made uniform. Emphasis on "free" demo-cratic basic order implies that there should be no forceful or discrimi-natory governance and that individual opinions and actions should betolerated, as long as they do not injure the legal interests of otherindividuals or public interest.

Therefore, in a free democratic society, the rights of even oppo-nents of free democracy are protected; only their specific actions canbe restrained when they are deleterious to the public interest. Thegovernment must protect itself against extremists trying to overthrowthe government via violence and force. In a free democratic society,however, the government can only penalize the opponents of demo-cracy for their "actions"; it should not force them to renounce theirideology or make them pledge to abide by the law against their be-liefs using any form of direct or indirect means of coercion. This iswhat distinguishes a free democratic society from a communist regime.

(3) Let us next examine what it means to submit the pledge to abide by the law to the long-term prisoners who have thus far re-fused to convert their ideologies.

In form, requiring the pledge to abide by the law is different from the ideological conversion programs in the past. However, there is nopractical difference between the two; an inmate imprisoned for viola-tion of the National Security Act for action based on his belief incommunism is required to express an intention to change such beliefunder both programs. Thus, both are used to effectively separate andisolate individuals with particular ideological beliefs from ones withsame beliefs.

A letter of conversion is a written statement renouncing previ-ously held

communist ideology. In his official opinion about the instantcase, the Minister of Justice wrote that "the ideology conversion pro-gram has been replaced by requirement of submission of the pledge toabide by the law because the ideology conversion program may in-fringe on individual freedom of conscience as it requires an explicitexpression renouncing inner beliefs and imposes certain legal disad- vantage if the individual refuses to convert."

Requiring submission of the pledge to abide by the law, like theideology conversion program, forces a communist to renounce hiscommunist ideology and makes him publicly express it.

To such individual, a decision to submit the pledge to abide by thelaw is fundamentally identical to that to submit a letter of conversion.To him, "to abide by the law of a free democratic regime" is tanta-mount to "renouncement of the creation of a communist society". Thisis to change his world view, ideology, and beliefs. To such indivi- dual, the pledge is not merely a document without much significance as the majority of Justices claims.

While interpretation of laws and legal judgment take an importantplace in the legal process, there are many cases whose outcome willbe dependent on how the judges appraise the facts constituting a case.

The central issue of the case is the meaning of submission of thepledge to those inmates who have firmly held onto the communistideology. The majority of Justices take the issue too lightly. TheConstitutional Court must determine whether the case at hand containselements concerning freedom of conscience through individual and sub-stantial review of specific circumstances of the case.

The pledge to abide by the law, like the ideology conversion pro-gram, requires expression of a renouncement of inner beliefs. Since constitutionally protected conscience includes conscience that affectsindividual's world view, ideology, and beliefs, requiring submission ofthe pledge is an issue within the protected domain of the freedom of conscience.

(4) Let us next examine whether it is legal coercion limiting free-dom of conscience to exclude individuals who refused to submit thepledge to abide by the law for parole.

The majority of Justices points out that submission of the pledge is not compulsory and that the result of refusal to submit the pledge is merely exclusion from parole, which is a favor or benefit that an inmate only incidentally enjoys. The majority of Justices concludes that there is no coercion such as an imposition of a legal disadvantage to force submission of the pledge, and hence, there is no infringement on the freedom of conscience.

Furthermore, the majority writes that "When a statutory provisiondoes not legally compel performance of a certain action but is onlyemployed to decide whether to bestow certain benefits, such provisiondoes not infringe on the freedom of conscience, even though suchbenefit might be very critical and it is painful to give up the oppor- tunity to receive such benefit. "

Even if the concept of conscience used by the majority of Justicesis adopted, it is too formal an interpretation to conclude that exclu-sion from parole release upon refusal to submit the pledge is not alegal disadvantage. Such view is far from the constitutional spiritputing an emphasis on the protection of basic rights.

Let us consider a prisoner imprisoned for life for violation of theNational Security Act, and let us say that while he meets all otherqualification necessary for parole, he is excluded from parole becausehe refused to submit the pledge to abide by the law. Even for suchinmate who has a very firm ideological belief, it is very difficult todecide whether to return to his family and enjoy his freedom afterbeing released on parole or to spend the rest of his life confined byholding onto his belief tenaciously.

Since submission of the pledgewould mean renouncement of the communist ideology that he has held on to heretofore and betrayal of his comrades, he would experience aconflict of conscience when deciding whether to submit the pledge orforego the opportunity for parole. We cannot look at this problemunder the conceptual "rights and benefits" dichotomy.

While a conceptual tool could contribute to legal stability, it wouldnot yield a reasonable conclusion pertinent to a particular case. Con-stitutional adjudication is a process to give concrete and substantialmeanings to abstract and open provisions of the Constitution by apply-ing them to actual cases. In this light, it would not be appropriate to decide whether there has been limitation of basic rights based ona simple criterion of whether a particular disposition is "infringementon rights or deprivation of benefits." How could we say that it isnot an issue of freedom of conscience when impoverished individuals holding onto the communist ideology are denied basic social securityaid or medical care for refusing to submit the pledge to abide by thelaws of the free democratic regime because such benefits are notconsidered rights?

An individual can claim violation of such basic rights as freedomof conscience and freedom of expression even when he was deniedimportant benefits by the government. While the court will need toexamine each case to determine what is such an important benefit,exclusion of a long-term prisoner from parole consideration is certainlyone of such cases because parole may be one of the most important matters in his life.

The majority of Justices employ such terms as "legal disadvantage"and "legal coercion" to conclude that there is no issue concerningfreedom of conscience in the case. This conclusion is too formal fora question of infringement on such vital constitutional value as thefreedom of conscience1).

(5) While the instant provision requiring submission of the pledge to abide by the law does not directly compel expression of conscienceof an inmate, it does forcibly demand that he subscribes to the pledgein effect whether he may recover his bodily freedom or continue hispermanent stay in the confined facility depends on his decision tosubmit the pledge or not. In reality, this is to indirectly compelling an inmate to express his conscience - ideology, or beliefs.

If the inmate refuses to subscribe to the pledge, it would be apassive declaration that they would not abide by the national laws,or that they would continue to hold on to their previous beliefs orideology. This is a restriction of the freedom of silence.

The pledge to abide by the law is bigger than something that"prisoners can refuse to submit and as a result, not enjoy the benefit of parole release." It falls within the domain of the freedom of con-science protected by Article 19 of the Constitution.

We would notbe able to say that it is unrelated to freedom of conscience to offerparole to an inmate who is imprisoned for religious reasons on thecondition that he step over a cross because there is no legal disad-vantage.

Freedom of conscience is a very delicate matter dealing with theinner minds of citizens, and there could be various ways to restrict itby the State who has diverse policy measures. The ConstitutionalCourt, the last bastion for basic rights protection, should examine sub-stantial effects that a particular state action might have on the innerminds of citizens in reviewing a case concerning the freedom ofconscience from diverse angles.

C. Whether requiring submission of the pledge to

abide by the law violates freedom of conscience

(1) "Freedom of conscience protected by Article 19 of the Consti-tution includes not only forum internum that include freedom to formconscience and freedom to make a decision based on one's con-science, but also forum externum that include freedom to express andtake actions based on decisions of one's conscience. While foruminternum is an absolute freedom that may not be abridged under anycircumstance as long as it stays within one's mind, forum externumis a relative freedom that can be restricted by Statute when it isnecessary to do so for national security, the maintenance of law andorder, or for public welfare under Article 37 (2) of the Constitution(10-2 KCCR 159-166, 96Hun-Ba35, July 18, 1998).

(2) Requiring submission of the pledge to abide by the law di-rectly restricts inner freedom of a person in that it deals with an in-dividual's world view, view of life, ideology, beliefs, or other moral judgment.

While what matters is the pledge which can be said to be a form of "expression,", it is an issue not in the domains of forum externumbut in the domain of forum interium since the State in effect coercesan individual to make confession of one's inner beliefs.

In other words, the pledge in question does not stop at requiringan individual to submit himself externally but goes on to compel oneto convince oneself internally the legitimacy of such a submission asa condition of parole. Article 16(2) of the Constitution of Spain sti-pulates that "nobody may be compelled to make statements regardinghis religion, beliefs or ideologies"; Article 18(2) of the InternationalCovenant of Civil and Political Rights (so-called "International HumanRights Covenant B") that the Republic of Korea acceded to in 1990 sti-pulates that no one shall be subject to coercion which would impairhis freedom to have or to adopt a religion or belief of his choice; andArticle 4(1) of the Basic Law for the Federal Republic of Germanystipulates that "...freedom to profess a religious or philosophical creedshall be inviolable." These provisions have been adopted to prevent infringement on inner freedom brought by compelling one to confessone's beliefs. This is an outcome of a constitutional tradition toprevent religious confession such as "stepping on the cross.".

Since requiring submission of the pledge to abide by the law is forcing an individual to either confess one's inner mind or preven-ting him from keeping silence, it infringes upon the freedom to decidewhether to confess one's beliefs or not. This means that requiring the pledge is not merely a problem of expression of inner thoughts,but rather a problem of inner thoughts itself.

Otherwise, one can argue that it would not be a problem con-cerned with inner freedom to ask "I would not ask what your beliefsare, but tell me whether it is A or not."

Since the pledge is a restriction on whether to confess one's inner freedom, it touches upon the inner part of the freedom of conscience,and thus, is linked with the essential aspect of the freedom of con-science.

(3) Let us next examine whether requiring submission of thepledge to abide by the law is a restriction of basic rights by an Act.We think that, since requiring submission of the pledge to abide by thelaw falls within the protected domain of the freedom of conscience, itcan only be restricted by an Act when necessary to do so for nationalsecurity or other compelling reasons. However, no act has been passedto legitimize the requirement of such a pledge, and the legislature hasnot delegated to the administration detailed rule-making concerning thepledge. It has only been implemented based on Ordinance for ParoleReview (Amended by Ordinance of the Ministry of Justice No. 467 onOctober 10, 1998). It is in violation of the Constitution to limit thebasic rights of citizens by ordinance of the Ministry, not by act nor with delegation of rule-making, and is unconstitutional.

(4) Let us next see whether requiring submission of the pledgeviolates the principle of proportionality.

Even if one argues that requiring submission of the pledge isnot a matter of inner freedom but only a restriction on the freedomto realize conscience, the instant provision violates the principle ofproportionality.

The instant provision of the Ordinance may have a valid legisla-tive purpose in that the pledge is used to judge the likelihood of re-cidivism of an inmate. However, appropriateness of the means chosento achieve the legislative purpose is questionable. While there maybe some individuals who adamantly object to the legal order of theRepublic of Korea among violators of the public security laws, failureto submit the pledge is passive refusal. Recidivism can be said to bea form of active refusal of the existing legal order, and the likeli-hood of recidivism is affected by numerous contingencies such as poli-tical or social conditions of the society when an inmate is released,and individual living environments. It is not clear whether an inmate released on parole after submitting the pledge is not likely to commitanother crime or whether likelihood of recidivism would be higher if inmates were to be released without submitting the pledge.

If requiring submission of the pledge aims to assist judgmentwhether the released inmate is likely to be a recidivist, other meansused for parole review of ordinary inmates could be employed toachieve such a legislative purpose. A potential candidate for parole could first be screened by using the incarceration record during theimprisonment term. The members of Parole Review Board could ques-tion the inmate about the status of mind and future plans during theinterview for parole review, and could indirectly make assessment aboutthe inmate's ideology and about whether he accepts the constitutionalorder of the Republic of Korea. Likelihood of recidivism could thus be examined thoroughly.

The instant provision excessively restricts freedom of consciencebecause it forces an inmate to make a written confession about thingsrelated to fundamental beliefs or conscience.

An individual asked to submit the pledge in order to be reviewed for parole release suffers a serious mental conflict: he can either ex-press his intent to change his fundamental belief to be released, or hecan choose to retain his inner belief by remaining silent. Thus, theinjury inflicted on individuals' conscience by requiring the pledge toabide by the law is far greater than the public interest of acquisi-tion of information for parole review, and the instant provision failsthe balance of interest test.

D. Conclusion

In conclusion, we think that the instant provision is unconstitu-tional because it infringes upon the inner freedom of conscience,encroaches upon the basic rights of

citizens not based on acts leg-islated by the National Assembly, and violates the principle of pro-portionality even when one deems it as restriction of freedom to realizeone's conscience.

Justices Yun Young-chul (Presiding Justice), Han Dae-hyun,Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyoung-il (Assigned Justice), Song In-jun, and Choo Sun-hoe

Aftermath of the Case

The decision put an end to a constitutional debate about the pledgerequired of inmates imprisoned for violation of public security laws.However, voices calling for abolishment of the pledge based on politicalconsideration did not disappear altogether. The pledge requirement was abrogated with revision of the Ordinance for Parole Review onJuly 31, 2003.