A. Background of the Case
The Court in this case reviewed Sections 1 and 5 of Article 7 of the National Security Act, which punishes the act of praising or inciting anti-government organizations and producing pro-enemy material and found them constitutional only when applied to limited circumstances threatening national security or harming the basic order of free democracy.
The National Security Act was enacted to protect national security and the freedom of the people by regulating anti-state activities that threaten the nation under the looming possibility of North-South military confrontation, but has been criticized for its vague and excessively broad provisions that could be abused. Article 7 Section 1 provided that "any person who praises, incites or sympathizes with, or benefits through other means the activities of an anti-state organization, a member thereof, or who acts in concert with it shall be punished by imprisonment for not more than seven years." Article 7 Section 5 provided that "any person who, for the purpose of performing the acts mentioned in Items 1 through 4, manufactures, imports, reproduces, holds, carries, distributes, sells or acquires any documents, drawings or any other expressive materials, shall be punished by the penalty as referred to in the respective paragraph." By using such vague terms, the provisions extensively restricted the freedom of expression.
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 Sections 1 and 5 of Article 7 of the National Security Act. They requested a constitutional review of the aforementioned provisions and the presiding court granted the motion.
B. Summary of the Decision
The Court found some terms in Sections 1 and 5 of Article 7 of the National Security Act to be vague but upheld the provisions so long as they were interpreted to apply only to limited circumstances threatening national security or harming the basic order of free democracy, for the following reasons.
The expressions such as "member", "activities", "sympathizes with", “other means” or "benefits" used in Sections 1 and 5 of Article 7 of the National Security Act are vague concepts that do not permit a reasonable standard for ordinary people with common sense to discern the types of conduct that are covered. They are also too broad, making it difficult to determine the connotations and boundaries of their definitions.
However, 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, giving life to its constitutional and positive aspects while avoiding the interpretation which will lead to unconstitutionality. Sections 1 and 5 of Article 7 are not unconstitutional insofar as they are narrowly interpreted to cover only those activities posing a clear threat to the integrity and the security of the nation or the basic order of free democracy.
Activities jeopardizing the integrity and security of the nation denote those communist activities, coming from the 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, excluding the rule of violence or arbitrary rule: in other words, one-person or one-party dictatorship by an anti-state organization. Specifically, they indicate efforts to subvert and confuse our internal order that include respect for basic rights, separation of power, representative democracy, the multi-party system, the electoral system, the economic order based on private property and market economy, and independence of the judiciary.
Justice Byun Jeong-Soo dissented on grounds that provisions that are so clearly unconstitutional cannot be remedied of their unconstitutionality merely through a narrow interpretation, and should simply be pronounced as unconstitutional.
C. Aftermath of the Case
After this decision, on May 31, 1991, the National Assembly revised the problematic provision, Article 7 of the National Security Act, through Act No. 4373. The phrase "with the knowledge of the fact that it may endanger the existence and security of the state or democratic basic order" was inserted at the beginning of Article 7 Section 1 as suggested by the Court. The expression "benefits anti-state organizations through other means" in the latter part of Section 1 was replaced by “any person who propagates or instigates a rebellion against the state.”
The revised law was challenged through constitutional complaints and requests for a constitutional review of the remaining ambiguities. However, the Court held that the insertion of the subjective intent requirement in the new law, namely "with the knowledge of the fact that it may endanger the existence and security of the state or democratic basic order," removed most of the multiplicity and vagueness of the law, and on these grounds handed down a simple decision of constitutionality (95Hun-Ka2, October 4, 1996; 92Hun-Ba6, etc., January 16, 1997; 98Hun-Ba66, etc., April 29, 1999; 99Hun-Ba27, etc., April 25, 2002; 2003Hun-Ba85, etc., August 26, 2004).
Meanwhile, the aforementioned provision of the National Security Act was once again pronounced constitutional on April 30, 2015 (2012Hun-Ba95, etc.). While the previous decisions had been focused on regulatory form, such as whether the rule of clarity of the principle of nulla poena sine lege had been violated, this decision also gave weight to actual unconstitutionality with regard to the regulatory content, such as whether the freedom of expression had been violated. In this latest decision, Justice Kim Yi-Su, pronounced an opinion of simple unconstitutionality for the phrase, “act in concert with” of the pro-enemy action clause of Article 7 Section 1 of the National Security Act, on the grounds that it infringes on the freedom of expression for violating the rule of clarity under the principle of nulla poena sine lege and the rule against excessive restriction. Justices Kim Yi-Su, Lee Jin-Sung, and Kang Il-Won pronounced an opinion of simple unconstitutionality for the phrase, “who holds or acquires” of the pro-enemy materials clause of Article 7 Section 5, on the grounds that it infringes upon the freedom of expression for violating the rule against excessive restriction.