Case on the Act on the Special Measures for the Punishment of Persons Involved in Anti-State Activities

[8-1 KCCR 1, 95Hun-Ka5, January 25, 1996]

A. Background of the Case

In this case, the Constitutional Court struck down the Act on the Special Measures for the Punishment of Persons Involved in Anti-State Activities (hereinafter referred to as the “Anti-State Activity Act”) enacted in the period of the so-called "Yushin Constitution” on the ground that it contravened due process of law and the right to trial.

Article 7 Section 5 of the Anti-State Activity Act provided that if the accused did not attend a trial date for no good cause, a trial should be held in his absence. The main texts of Sections 6 and 7 prohibited the attorney or the agent for the accused from appearing on his behalf at this default trial, and required that the court reach its final judgment and hand out the sentence on the first trial date on the basis of the prosecutor's arguments and the facts stated in the charge without any examination of evidence. Article 8 of the same Act provided that, if the accused failed to comply with the prosecutor's summons on two or more occasions, the forfeiture of the properties of the accused should be ordered in addition to the statutory penalties for each crime committed.

Despite its general language, the Anti-State Activity Act was in reality aimed at punishing and confiscating the property of Kim Hyong-Wook, the former Director of the Korean Central Intelligence Agency, who had publicly criticized the then President Park Cheong-Hee before disappearing in Paris in 1975.

Pursuant to the Anti-State Activity Act, Kim Hyong-Wook was prosecuted in 1982 and sentenced to seven years of imprisonment, seven years of disqualification from public office, and confiscation of all his domestic assets in a default trial. His wife, acting on his behalf, requested appeal of the judgment on May 16, 1990. However, Article 11 of the Anti-State Activity Act had eliminated the right to appeal such judgment. She requested constitutional review of Article 11, and upon denial, filed a constitutional complaint challenging the provision. On July 29, 1993, the Court struck down Article 11 Section 1 of the Anti-State Activity Act, which had eliminated the right to appeal from the default trial in all cases but when the accused was arrested or turned himself into the prosecutor. The Court also struck down Article 13 Section 1 of the same Act that barred

one from filing a motion for leave to allow the appeal. The Court's decision for unconstitutionality was based on the findings of violations of due process of law and the right to trial (90Hun-Ba35).

Pursuant to the Court's decision, the appeal began in November 1993 in the Seoul District Court. During the appeal, Kim's wife, requested on his behalf constitutional review of Sections 5, 6 and 7 of Article 7 and Article 8 of the Anti-State Activity Act. The presiding court granted part of the motion, and requested constitutional review.

B. Summary of the Decision

The Court first found Sections 5, 6 and 7 of Article 7 and Article 8 of the Anti-State Activity Act unconstitutional, and noted that, if these provisions were invalidated, the remaining provisions would become unenforceable, and for this reason struck down the entire Anti-State Activity Act.

The Court first examined the legal prerequisites to constitutional review. It is very probable that Kim has died, but there is no such proof. The underlying proceeding was not concluded but had been suspended, so the instant constitutional review process was able to proceed. Although Article 7 Section 6 of the Anti-State Activity Act bars the representatives of the accused from participating in criminal proceedings, the provision cannot be construed to apply also to a constitutional review process. Thus, the request for review in this regard is not unlawful.

Next, the Court examined the merits of the challenged provisions. Article 7 Section 5 of the Anti-State Activity Act mandates the court to hold a default trial upon the prosecutor's request and does not allow postponement of the trial, barring the defendant entirely from defending himself against the charge of a serious offense. Therefore, the provision imposes an excessive restriction on the defendant's right to trial. Also, the provision, even though the charged offense is serious, does not allow the defendant the opportunity to attend his own trial, forfeiting the right to answer to or disprove the prosecutor's case or establish an affirmative defense, and by permitting a default trial to proceed even when the defendant may not be responsible for the absence, runs contrary to the due process of law.

Further, Section 6 and the main text of Section 7 of Article 7 provide death penalty, life imprisonment and imprisonment for not less than three years as statutory penalties. Despite the seriousness of these penalties, the defendant cannot have an attorney appear on his behalf and is sentenced without an

examination of the evidence against him. Therefore, the provisions violate due process of law and restrict the right to trial.

Article 8 of the Anti-State Activity Act provides for confiscation of all the properties of the defendant. Unlike other crimes and punishments, the confiscation has no direct or indirect relationship with the crimes it is supposed to redress. Further, the defendant may fail to appear for reasons that cannot be imputed to his responsibility. Even if the provision is intended to create a new offense out of an anti-state activist's intentional failure to respond to the summons, punishment by confiscation of the defendant’s entire properties for failing to answer to the summons on two or more occasions is too severe for the culpability of the crime. It deviates from the requirement of justice and fairness of criminal punishment and is in violation of due process of law and the rule against excessive restriction.

Furthermore, Article 8 of the Anti-State Activity Act, combined with Article 10, makes it possible to confiscate even the properties of the defendant's relatives without examination of evidence, leading to a high probability of the occurrence of guilt by association, prohibited by Article 13 Section 3 of the Constitution.

The Court delivered a decision of unconstitutionality for the entire Anti-State Activity Act as per the proviso of Article 45 of the Constitutional Court Act, on the grounds that the unconstitutionality of Section 5, Section 6, the main text of Section 7 of Article 7 and Article 8 of the Anti-State Activity Act would render the entire Act unenforceable.

Justices Kim Chin-Woo and Hwang Do-Yun provided a concurring opinion, as follows. Article 2 Section 1 Item 2 includes in the definition of an anti-state activist “those that have committed significantly serious crimes and have not returned from abroad.” This violates the rule of clarity of the principle ofnulla poena sine lege. Further, Article 5 Section 1, which prescribes that a default trial can be requested when an anti-state activist does not answer to the summons by a prosecutor for no justifiable cause, on two or more occasions, violates due process of law. Thus, these provisions are also unconstitutional, and the entire Anti-State Activity Act should accordingly be pronounced to be violating the Constitution.

C. Significanceof the Decisionand Aftermath of the Case

The decision is significant in that it recognized the constitutional spirit of upholding the right to trial pursuant to due process of law, even for anti-state activists. Indeed, the Anti-State Activity Act was enacted under the authoritarian regime of the past, for the unreasonable purpose of punishing a particular person

and confiscating his properties. No one aside from Kim Hyong-Wook was prosecuted or punished under the Act.

The appeal resumed following the Court's decision, and on August 27, 1996, the Seoul District Court found Kim not guilty, and the prosecutor left the judgment intact by foregoing appeal. Thereafter, the confiscated properties were returned.

The Anti-State Activity Act was revoked by Act No. 6036 on December 28, 1999.

The default trial system was reviewed in the recent case on the Act on Special Cases concerning Expedition, etc. of Legal Proceedings. Article 23 of this Act provides, "When it is possible to confirm the whereabouts of the accused, in the trial proceedings at the court of first instance, even after six months from the time a report on the failure to serve on the accused was received, trials may be held without hearing a statement of the accused, as determined by Supreme Court Regulations. Provided, that this shall not apply to causes where a case constitutes death penalty, life imprisonment, or long-term imprisonment with or without labor exceeding three years." The constitutionality of this provision was dealt with in the case.

On July 16, 1998, the Constitutional Court struck down the above provision on the grounds that it neither excluded the possibility of imposing heavy penalties in the defendant's absence nor limited the possibility of default trial by the nature of the reason for the absence. The Court held that the law infringed the right to trial by violating the rule against excessive restriction and also failed to satisfy due process of law (97Hun-Ba22).

The aforementioned Article 23 of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings was amended by Act No. 6039 on December 28, 1999, reducing the scope of those subject to default trials by amending “cases constituting death penalty, life imprisonment or long-term imprisonment with or without labor exceeding three years” to “cases constituting death penalty, life imprisonment or long-term imprisonment with or without labor exceeding ten years.”