Injunction on Security Surveillance and National Defense Surveillance ActCase

[13-1 KCCR 799, 98Hun-Ba79, etc.,(consolidated), April 26, 2001]

In this case, the Constitutional Court invalidated a provision ofthe Security Surveillance Act not allowing an injunction on a securitysurveillance when a person made subject to security surveillancemakes an appeal to an appellate court through administrative proceed-ings, because the provision was against the principle of due process.

A. Background of the Case

According to the Security Surveillance Act, when a person filesa judicial review of administrative actions objecting to security sur-veillance, an injunction order can not be issued during the proceed-ings unlike other administrative cases.

A security surveillance disposition is issued against persons whocommitted such crimes as espionage or who violated certain statutesof the National Security Act. A person subject to security surveil-lance is required to report one's principal activities for a three-monthperiod, contents of meeting or communications with other persons, alsosubject to security surveillance, and matters relating to trips, and ifthe individual fails to report the aforementioned matters or does notfollow the limitations imposed by the authority, he or she would besubject to criminal prosecution.

Complainants are individuals who had been made subject to se-curity surveillance or whose security surveillance disposition periodhad been renewed. The complainants filed a constitutional complaintarguing that the instant statutory provision entirely prohibiting aninjunction order is against the principle of due process.

B. Summary of the Decision

The Court invalidated Article 24 of the Security Surveillance Actin a unanimous decision as follows:

According to Article 24 of the Security Surveillance Act, it is im-possible to order an injunction against security surveillance disposi-tion when a person files a judical review of administrative actionsobjecting to security surveillance. Under the provision, an individualwho received an unjustified security surveillance disposition cannothelp but be made

subject to the enforcement of the disposition untilthe ordinary court decides the disposition null and void. Furthermore,under the provision, even if the disposition is invalidated by the judgment of the ordinary court, the person will be prosecuted oncriminal charges if the said person runs away to avoid security sur-veillance, does not report required matters without valid justification,or attends a gathering contrary to the public prosecutor's disposi-tion before the prohibitive measures is declared null and void. Thestatutory provision also stipulates that a case would be dismissed ifthe disposition period of 2 years elapses during administrative pro-ceedings.

The legislative purpose of the instant provision is to prevent aninjunction order from being issued without sufficient review of thecase. However, such objective can be achieved through means otherthan placing an absolute ban on injunction. For example, substan-tive regulations or procedural regulations could be enacted to qualifythe conditions of an injunction, and the ordinary court may make thedecision based on their judgment, thereby achieving the desired leg- islative objective.

An absolute ban on injunction was adopted not because it wasinevitable, but rather because priority had been given to administra-tive convenience and efficiency in legislating the Act. Under the pro-vision, an individual made subject to security surveillance has onlylimited opportunities to receive a judicial review of the legitimacy ofthe security surveillance disposition restricting his or her privacyrights and freedom of expression, and sometimes, an individual made subject to security surveillance is even deprived of such opportunitiesaltogether. In this light, there does not exist a balance between thepublic interest achieved by the Act and the private interest restrictedby the Act.

Due process of law stipulated in Article 12(1) of the Constitutionrequires that restrictions on peoples' freedom be made through pro-cedures stipulated in a form of an act legislated by the parliamentand that the contents of such Act be reasonable and legitimate.However, the instant provision unreasonably restricts the basic rightof a person made subject to security surveillance in the legal processof arguing the legitimacy of the security surveillance disposition.Therefore, it is contrary to the principle of due process.