Constitutional Court Upholds National Security Act Banning Membership in Pro-Treason Organizations

Majority Opinion: "If the Risk to National Existence is Imminent, It Becomes Difficult to Protect Significant Legal Interests"
Unconstitutional Opinion: "Punishment for Possession of Pro-Treasonous Materials, Excessive Regulation... Low Likelihood of Risk Materialization"

The Constitutional Court has ruled that the 'National Security Act provisions' prohibiting joining pro-North Korean organizations or praising and encouraging their activities, as well as possessing and distributing pro-North Korean materials, do not violate the Constitution.

[Image source=Yonhap News]

On the 26th, the Constitutional Court made a ruling on a constitutional complaint and a request for a constitutional review regarding Article 7 of the National Security Act. The Court decided, with a 6 (constitutional) to 3 (unconstitutional) vote, that the part of Article 7, Paragraph 1 concerning 'those who praise, encourage, propagate, or sympathize with such activities' is constitutional. Regarding Article 7, Paragraph 5, the part concerning 'those who produce, transport, or distribute materials for the purpose of praising, encouraging, propagating, or sympathizing' was also ruled constitutional by a 6 (constitutional) to 3 (unconstitutional) vote. However, the part about 'possession and acquisition' was ruled constitutional by a narrower margin of 4 (constitutional) to 5 (unconstitutional). Additionally, the provision punishing those who 'join' anti-state or pro-North Korean organizations was unanimously dismissed by all justices.

The subjects of the review were Article 2, Paragraph 1, and Article 7, Paragraphs 1 and 5 of the National Security Act. Article 2, Paragraph 1 defines 'anti-state organizations' as 'domestic or foreign groups or organizations with a command and control system, aiming to usurp the government or cause national disturbance.'

Article 7, Paragraph 1 stipulates that 'those who praise, encourage, propagate, or sympathize with the activities of anti-state organizations or their members or those who have received their orders, or who propagate or incite national disturbance, shall be punished by imprisonment for up to seven years.' Paragraph 5 specifies that those who, for the purpose of pro-North Korean activities, 'produce, import, copy, possess, transport, distribute, sell, or acquire documents, drawings, or other expressive materials' shall be punished.

The Constitutional Court stated regarding the provisions on pro-North Korean activities and materials, "The geopolitical conflict surrounding the Korean Peninsula continues, and the threat to the Republic of Korea's system posed by North Korea persists. Therefore, it cannot be said that the international situation or relations with North Korea have fundamentally changed to the extent that the traditional stance of the National Security Act, which regards North Korea as an anti-state organization, should be altered." The Court further noted, "It is difficult to protect the significant legal interests of national safety and existence through public authority intervention only when the risk becomes concrete and imminent."

It added, "The part of the provision concerning 'possession and acquisition' of pro-North Korean materials is now hardly likely to be misused as a means of punishing ideological tendencies or oppressing minorities. Regarding the increasing electronic media forms of pro-North Korean materials, since there is almost no time gap between possession/acquisition and dissemination, and it is unpredictable how far or to whom the materials will spread, the necessity to prohibit possession and acquisition has increased compared to before."

On the other hand, Justices Yoo Nam-seok and Jung Jeong-mi expressed a dissenting opinion on the 'possession and acquisition' part of the pro-North Korean materials provision, stating, "Punishing the possession and acquisition of pro-North Korean materials at a stage where the conscientious decision formed through such acts has not been externally expressed or realized is not permissible. Punishing possession and acquisition based solely on the vague possibility that the possessor might disseminate or spread the materials to the public is an excessive regulation."

Furthermore, Justices Kim Ki-young, Moon Hyung-bae, and Lee Mi-seon dissented on the provisions concerning pro-North Korean activities and materials, arguing, "It is unlikely that concrete and imminent danger will immediately materialize solely from pro-North Korean activities. Given that current information and communication networks are based on two-way communication, pro-North Korean materials distributed via electronic media can be quickly verified and excluded in the free marketplace of ideas. The development of information and communication networks does not necessarily increase the likelihood of danger becoming concrete or actual."

This content was produced with the assistance of AI translation services.