[1] Legal nature of the agreement between South and North Korea on reconciliation, infertility, and exchange and cooperation

[2] Whether Article 9(3) of the Inter-Korean Exchange and Cooperation Act, which provides that the Government shall obtain approval for contact with North Korean residents, is unconstitutional (negative)

[3] The case holding that the non-permission of the application for North Korean contact to support North Korea at a private level not via the Korean National Red Cross does not deviate from and abuse the scope of discretion

[1] Under the premise that inter-Korean relations are "special relations formed provisionally in the course of pursuing unification, not between Ghana and the country," the agreement on reconciliation, infertility, and exchange and cooperation between South and North Korea is an agreement document adopted by the inter-Korean authorities with respect to inter-Korean relations where the inter-Korean relations are related parties, and thus, it cannot be deemed as a treaty or equivalent to a treaty between a country, since the inter-Korean authorities are legally binding, and thus, it is not recognized as having the same effect as domestic law.

[2] Although the Act provides that inter-Korean exchange and cooperation is the most realistic and effective means to achieve peaceful unification based on the fundamental order of a free democracy under the recognition that the provisions of Article 4, etc. of the Constitution are the most realistic and effective means to promote such exchange and cooperation, it has committed an act aimed at promoting inter-Korean exchange and cooperation, unlike other Acts and subordinate statutes, with the aim of providing inter-Korean exchange and cooperation services among all citizens. However, as long as it cannot be denied that North Korea still poses a threat to our basic order of free democracy, it is necessary to adjust exchanges and cooperation between North and North Korea to the extent that it does not harm the basic order of a free democracy. Article 9 (3) of the Inter-Korean Exchange and Cooperation Act provides that North Korean residents shall obtain approval of contact with the above North Korean residents within the scope that it does not infringe on the fundamental order of a free and fundamental order of a free democracy. Thus, it cannot be said that it does not constitute an infringement on the fundamental order of a free and fundamental order of a free democracy and cooperation of the Republic of Korea.

[3] The case holding that the non-permission of the application for North Korean contact for support to North Korea at a private level not via the Korean National Red Cross does not deviate from and abuse the scope of discretion

[1] Article 9(3) of the Inter-Korea Exchange and Cooperation Act / [2] Article 9(3) of the Inter-Korea Exchange and Cooperation Act; Article 4 of the Constitution; Articles 18, 21, and 37(1) and (2) of the Constitution / [3] Article 9(3) of the Inter-Korea Exchange and Cooperation Act; Articles 4, 18, 21, 37(1) and (2) of the Constitution; Article 27 of the Administrative Litigation Act [General]

[1] Supreme Court Decision 92Do1815 delivered on February 9, 1993 (Gong1993Sang, 1025), Supreme Court Decision 93Do1730 delivered on September 28, 1993 (Gong1993Ha, 308), Supreme Court Decision 96Do2673 delivered on December 23, 1996 (Gong197Sang, 583), Supreme Court Decision 96Do1817 delivered on February 28, 1997 (Gong197Sang, 1026), Supreme Court Decision 98Do1395 delivered on July 28, 1998 (Gong198Ha, 2356)

Attorney Song-chul et al., Counsel for the defendant-appellant in relation to a democratic society

Minister of Unification

Seoul High Court Decision 97Gu18402 delivered on July 16, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the ground of appeal on the legal nature of the Inter-Korean Basic Agreement

Under the premise that South and North Korea’s agreement on reconciliation, infertility, and exchange and cooperation between South and North Korea (hereinafter referred to as “Inter-Korean basic agreement”) is “special relationship formed provisionally in the course of pursuing unification, not between South and North Korea’s relationship” and countries, the agreement is a document adopted by the authorities of South and North Korea with respect to inter-Korean relations that have a common political obligation to achieve the peaceful unification of the South and North Korea. As such, the agreement cannot be deemed as a treaty or any equivalent agreement between the countries because the inter-Korean authorities are responsible for each political obligation and promised to fulfill their gender, and thus, it cannot be deemed as having the same effect as that of a domestic law.

In the same purport, the court below is justified in rejecting the plaintiff's assertion that Article 9 (3) of the Inter-Korean Exchange and Cooperation Act does not violate Article 17 of the Inter-Korean Basic Agreement, and there is no error of law by misunderstanding the legal nature of the Inter-Korean Basic Agreement, as otherwise alleged in the ground of appeal. The ground of appeal on this point is not acceptable.

2. As to the ground of appeal that Article 9(3) of the Inter-Korea Exchange and Cooperation Act is unconstitutional

Under the recognition that inter-Korean exchanges and cooperation is the most realistic and effective means to achieve peaceful unification based on the liberal democratic basic order which declares the unification clause, such as Article 4 of the Constitution, the Act on Inter-Korean Exchange and Cooperation (hereinafter referred to as the "Act") has been established as a legal device for the promotion thereof. The enactment and implementation of the Act guarantees, unlike other provisions of other Acts, positive acts for the purpose of inter-Korean exchange and cooperation, such as traveling, trade and cooperation projects and provision of communications services between the two Koreas, to all citizens. However, as long as it cannot be denied that North Korea is still threatened with our democratic basic order, it is necessary to adjust the exchange and cooperation between the two Koreas to be conducted in a way that assists in peaceful unification within the extent that it does not undermine the basic order of free democracy. Article 9(3) of the Act provides that North Korea's contact with North Korean residents should obtain approval for contact with North Korean residents is unconstitutional for the purpose of peaceful coordination based on the liberal democratic basic order. Thus, it does not violate the principle of unification under Article 9(3) of the Constitution.

In addition, freedom and rights of the people guaranteed by the Constitution are not unlimited enjoyment, but can be restricted to the extent that they do not infringe on their essential contents, if necessary for national security, maintenance of order, or public welfare. As such, Article 9(3) of the Act does not intend to prohibit the citizens from having contact with North Korean residents at source, but rather, to coordinate the contact with North Korean residents to be carried out within the extent that it is deemed justifiable for inter-Korean exchange and cooperation. Therefore, even if the freedom and rights of the people are somewhat limited during the process of approval, such restriction does not constitute a minimum limit necessary for national security or maintenance of order, and the meaning of the above provision cannot be said to infringe on the fundamental rights and rights of the people. Article 9(3) of the Act does not stipulate freedom of speech, assembly, prohibition of publication and delegation of rights under the Constitution and Article 7(1)1 of the Constitution and Article 7(2)1 of the Constitution and Article 7(3)1 of the Constitution, and it does not constitute an infringement on the fundamental rights and rights of the people.

We affirm the judgment of the court below to the same purport, and there is no error in the misapprehension of the judgment as to whether Article 9 (3) of the Inter-Korea Exchange and Cooperation Act is unconstitutional or not, as otherwise alleged in the ground of appeal. The grounds of appeal on this point

3. As to the ground of appeal regarding deviation or abuse of discretionary power

We have the position to help North Korean residents, who were divided into North Korea and South Korea, who are faced with difficulties due to food accidents, etc., based on South Korea, even though they are not pointed out in the grounds of appeal, they are acceptable. However, in the present situation, it cannot be said that the special nature of inter-Korean relations ought to be entirely the whole self-regulation of each citizen.

Although North Korean authorities are faced with difficulties due to food and disaster, it is well known that North Korean residents continue to depart from the Republic of Korea, such as diving and nuclear weapons development, without giving up the North Korean unification route. As such, under this reality, North Korean residents' support should be made in a way that substantially assists North Korean residents while ensuring transparency in distribution so that support can not be diverted for other purposes, such as military use by the North Korean authorities. Furthermore, in order to prevent the threat of our democratic basic order from being threatened with our basic democratic order, the most efficient and necessary method for this purpose has the ability and significance to support North Korea, and at the same time limit it to a specific organization equipped with the negotiating power to ensure transparency in distribution of supported goods.

According to the reasoning of the judgment below, the defendant set up a policy to restrict support from North Korea at a private level only through the Korean Red Cross which is assessed as having the above capabilities, significance, and negotiating power, and requested the plaintiff to cooperate with the support from North Korea promoted by the plaintiff through the Korean Red Cross based on that policy. On the other hand, the plaintiff himself applied for support from North Korea in direct contact with the persons related to the Red Cross, and the plaintiff rejected the application. In light of the need to limit the counter for support from North Korea as mentioned above, and the need to achieve the purpose of support from North Korea, even if the plaintiff does not directly contact with the persons related to the Red Cross, it is difficult to view that the contact from North Korea that the plaintiff applied for approval is within the legitimate scope for exchange and cooperation between South and North Korea, so the defendant's disposition of this case rejected the defendant's disposition of this case cannot be deemed an abuse of discretion or a disposition deviating from the scope of discretion by violating the principle of proportionality.

In the same purport, the court below's dismissal of the plaintiff's claim of this case seeking the revocation of the defendant's disposition of this case as a legitimate disposition conducted within the discretionary scope is justified, and there is no error in the misapprehension of judgment as to the deviation or abuse of discretionary power as otherwise alleged in the ground of appeal. The ground of appeal on this point cannot be accepted.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)