Praising and Encouraging under National Security Act case,

[2 KCCR 49, 89Hun-Ka113, April 2, 1990]

A. Background of the Case

The Court in this case reviewed Article 7 (1) and (5) of the National Security Act which condemned the act of praising or Encouraging anti-state groups and producing treasonous material, and found it constitutional only as it applies to the limited circumstances threatening national security and the basic order of free democracy.

The National Security Act was enacted to protect national security and people's liberties from the threat of anti-state activities under looming possibility of the North-South military confrontation, but has been criticized for its vague and overly broad provisions that could be abused. Article 7 (1) provided that "any person who praises, encourages, sympathizes with, or benefits through other means operation, an anti-state organization, its members, or any person under its direction shall be punished by imprisonment for up to seven years." Article 7 (5) provided that "any person who, for the purpose of performing the acts mentioned in (1), (2), (3) or, (4) of this section, produces, imports, duplicates, possesses, transports, distributes, sells or acquires a document, a drawing or any other expressive article shall be punished by a penalty prescribed in each subsection respectively." Using such vague terms, the provisions restricted the freedom of expression in a sweeping manner.

At the Choongmoo Branch of the Masan Local Court, the petitioners were prosecuted and tried for possessing and distributing books and other expressive materials for the purpose of benefiting an anti-state organization under Article 7 (1) and (5) of the National Security Act. They made motion for constitutional review of the said statute and the presiding court granted the motion.

B. Summary of the Decision

The Court found some terms in Article 7 (1) and (5) of the National Security Act vague but upheld them so long as it was interpreted to apply only to the limited circumstances threatening national security and the basic order of free democracy.

The expressions such as "member", "activities", "sympathizes with", or "benefits" used in

the challenged provisions are too vague and do not permit a reasonable standard for ordinary people with good sense to visualize the covered types of conduct. They are also overbroad to determine the contents and boundaries of their definitions. Interpreted literally, they will merely intimidate and suppress freedom of expression without upholding any public interest in national security. Furthermore, they permit the law enforcement agencies to arbitrarily enforce the law, infringing freedom of speech, freedom of press, and freedom of science and arts, and ultimately violating the principle of rule of law and the principle of statutory punishment. In addition, the broadness of those expressions can potentially permit a punishment of a pursuit of reunification policy pursuant to the basic order of free democracy or a promotion of the national brotherhood. This result is not consistent with the preamble to the Constitution calling for unity of the Korean race through justice, humanity, and national brotherhood pursuant to the mandate of peaceful unification, and the Article 4 directing us toward peaceful reunification.

This multiplicity, however, does not justify total invalidation of the entire provision. Pursuant to a general constitutional principle, the terms in a legal provision permitting multiple definitions or multiple interpretations within the bounds of their literal meanings should be interpreted to make the provision consistent with the Constitution and to avoid unconstitutional interpretation of these terms, giving life to its constitutional and positive aspects. Article 7 (1) and (5) are not unconstitutional insofar as it is narrowly interpreted to cover only those activities posing a clear threat to the integrity and the security of the nation and the basic order of free democracy.

The activities jeopardizing the integrity and the security of the nation denote those communist activities, coming from outside, threatening the independence and infringing on the sovereignty of the Republic of Korea and its territories, thereby destroying constitutional institutions and rendering the Constitution and the laws inoperative. The activities impairing the basic order of free democracy denote those activities undermining the rule of law pursuant to the principles of equality and liberty and that of people's self-government by a majority will in exclusion of rule of violence or arbitrary rule: in other words, one-person or one-party dictatorship by an anti-state organization. Specifically, they are the efforts to subvert and confuse our internal orders such as respect for basic rights, separation of power, representative democracy, multi-party system, elections, the economic order based on private property and market economy, and independence of the judiciary.

Justice Byun Jeong-soo dissented on grounds that the law so clearly unconstitutional cannot be cured merely by interpreting it narrowly and should simply be stricken down.

C. Aftermath of the Case

Social reactions to this case were overwhelming. The Chosun Ilbo on April 3, 1990 opined that "Article 7 of the National Security Act has been criticized time and again as a quintessential poison pill because the vagueness of such concepts as 'praising' and 'encouraging' the overly broad scope of their coverage permitted abuses. The Court's decision can be said to have accepted a substantial portion of this criticism." On the same day, The Hankook Ilbo made the following observation: "this decision shows the Court's consideration of the reality of the continuing South-North military confrontation, as well as its resolve to prevent immense nation-wide outcry expected to follow a total invalidation of the law despite the perceived unconstitutionality from a purely legal point of view." The Dong-a Ilbo, also on the same day, showed much interest, and called for revision of the law by stating that "the legislature has taken no initiative to change such phrases as 'praising and encouraging' that have been pointed out as typical bad law of the past, and the legislature is due the process of self-evaluation painful to its core."

From academic circles, Huh-young argued that a total invalidation was the most logical choice, but if politically difficult, it should have been substituted by the second best choice of upholding the law under the limited circumstances and only for a limited time only until the legislature revises the Act.

However, the intent of the Constitutional Court vis-？-vis the decision of limited constitutionality appeared to have been misunderstood by the judiciary and the prosecutors to some extent. Even after this decision, the Supreme Court continued to apply the previous precedents to the National Security Act violations in the same manner while simply inserting the language of this decision into its judgments.

After this decision, on May 31 1991, the National Assembly revised the problematic provision, Article 7 of the National Security Act through Act 4373. The phrase "knowingly endangering the national integrity and security, or the basic order of free democracy" was inserted at the beginning of Article 7 (1) as suggested by the Court. The expression "benefits anti-state organizations through other means" was replaced by promotes and advocates for national subversion.

When the revised law was challenged through constitutional complaints against and requests for a constitutional review of the remaining ambiguities, the Court admitted the presence of ambiguities in the new law. However, it held that the insertion of the subjective intent requirement, namely "knowingly endangering the national integrity and security, or the basic order of free democracy," made interpretations deviating from the legislative intent nearly impossible. The Court also ruled that even the remaining terms such as 'members,' 'activities,' and 'sympathizes with' would no longer be vague when they are interpreted narrowly as forming one element of the crime together with the revisions. The Court, therefore, handed down a simple decision of constitutionality, finding no violation of the essential content of freedom of expression or of the principle of statutory punishment. (CC 1996.10.4, 95Hun-Ka2; 1997. 1.16, 92Hun-Ma6, etc.)