Anti-State Organization

Definition

Article 2(1) of the National Security Act defines an anti-state organization as "a domestic or foreign association or group that aims to fraudulently assume the title of government or to rebel against the State and that possesses a command and leadership system." In the 1980 full amendment (Act No. 3318) only the aims of fraudulently assuming the title of government or rebelling against the State were specified; the command-and-leadership-system element was added by the 1991 amendment.

The common purpose is judged by the purpose the association actually pursues, not by the inner intention of any single member, and may be established from its platform or rules or from what it actually seeks. The Supreme Court requires that an organization's line, purpose or activity pose a real risk of substantial harm to the State's existence and security or the free democratic basic order.

Enactment and amendments

The National Security Act was enacted on December 1, 1948 as Act No. 10 and entered into force the same day. In the wake of the Yeosu-Suncheon events it aimed to punish organizing groups aiming to fraudulently assume the title of government or to rebel against the State, and it drew on the Japanese Empire's Peace Preservation Law and Security Law.

The full amendment of December 31, 1980 (Act No. 3318) abolished the Anti-Communist Act and merged its provisions into the National Security Act, unifying the punishment of offences against state security. The amendment of May 31, 1991 (Act No. 4373) deleted Article 2(2), which had deemed associations or groups acting along a communist line with that purpose to be anti-state organizations as well, and added Article 1(2), requiring that the Act be construed and applied only to the minimum extent necessary and forbidding expansive interpretation that unreasonably restricts citizens' constitutionally guaranteed fundamental rights. That principle was invoked in later challenges to the Article 2 definition.

Constitutional review

The Constitutional Court has never struck the anti-state organization definition down. Its January 16, 1997 decision (89헌마240) upheld Article 6(2) under a limited-construction reading that took "목적수행" to refer to fraudulently assuming the title of government or rebelling against the State under Article 2. Its August 27, 1998 decision (97헌바85) reaffirmed that holding, ruling Article 6(2) constitutional only as applied where the act poses a clear risk of harm to the State's existence and security or the free democratic basic order.

On September 26, 2023 (2017헌바42 등, consolidated), the Court dismissed the constitutional complaints against Article 2(1), the anti-state organization provision, and upheld Articles 7(1) and 7(5) as constitutional. It was the eighth Constitutional Court ruling on the Article 7 praise and incitement provisions. Article 2(1) and Article 7(3) were dismissed unanimously; Article 7(1) and the making, transporting and distributing part of Article 7(5) were upheld 6-3; the possessing and acquiring part of Article 7(5) was upheld 4-5. A finding of unconstitutionality requires the agreement of six or more justices.

In that decision the Court reasoned that denying North Korea's statehood and treating it as an anti-state organization derives from the territorial clause of Article 3 of the Constitution and was a strategic response by the South Korean government to the historical situation of ideological confrontation. Geopolitical conflict on the Korean peninsula continues and the threat to the South's systemic survival persists, so the traditional position could not be said to have changed fundamentally. Three justices dissented on Article 7(1).

Examples

South Korean courts have consistently ruled since the enactment of the National Security Act that the power group north of the military demarcation line, the government of the Democratic People's Republic of Korea, is an anti-state organization, because the Act was originally enacted on the value judgment that the power group north of the 38th parallel was merely an anti-state organization fraudulently assuming the title of government. The Supreme Court held even after the inter-Korean summits that North Korea's character as an anti-state organization had not disappeared.

The Supreme Court held that even though summit talks took place and exchange and cooperation occurred, absent clear signs that North Korea had completely abandoned its line of communizing unification, it must be seen as both a partner in dialogue and cooperation for peaceful unification and an anti-state organization seeking to overthrow the South's free democratic system. Recent rulings, however, no longer use the older formula of an illegal organization fraudulently assuming the title of government that cannot be regarded as a state, instead describing an organization aiming at rebellion against the State that has not abandoned its communizing-unification line.

Korean organizations ruled anti-state include 재일 한국민주통일 연합 (한민통, first recognized as an anti-state organization in 1977; Supreme Court final ruling September 11, 1990, 대법원 90도1333), 진보당 (Supreme Court February 27, 1959, 4291형상559), 민청학련 and 인혁당재건위 (Supreme Court April 8, 1975, 74도3323), the 학림사건 (1981 ruling), and the 아람회 사건 (Seoul High Court June 19, 1982, 82노910). Those convicted in 한민통, 진보당, 민청학련, 인혁당재건위, 학림사건 and 아람회 사건 were acquitted on retrial in 2011, 2011, 2009, 2007, 2012 and 2009 respectively, but in the 한민통 case the court did not rule that 한민통 was not an anti-state organization.

In the 1990s 남한사회주의노동자동맹 (Supreme Court April 24, 1992, 92도256; 백태웅 and many organizers sentenced to prison terms including life imprisonment), 자주민주통일그룹 (Supreme Court November 22, 1991, 91도2341), 조선노동당 중부지역당 (Supreme Court July 26, 1993, 93도2158), 1995년 위원회 (later renamed 애국동맹; Supreme Court November 9, 1993, 93도2209) and 구국전위 (Supreme Court July 25, 1995, 95도1148) were recognized as anti-state organizations.

Relations

The definition is the axis of the Act's penal structure. Article 3(1) punishes constituting or joining an anti-state organization with capital punishment or life imprisonment for a ringleader, capital punishment, life imprisonment or 5 or more years for leading members, and 2 or more years for others. Article 3(2) punishes inducing another to join with 2 or more years, Article 3(3) punishes attempts, and Article 3(4) and (5) punish preparation and conspiracy.

Other provisions keyed to the concept include Article 4 (accomplishment of purpose), Article 5 (voluntary assistance, receipt of money and goods), Article 6 (infiltration and escape), Article 7 (praise, incitement) and Article 8 (meeting, communication).

Distinctions

The 이적단체 is a concept appearing in Article 7(3) of the National Security Act and is distinct from the 반국가단체. The Supreme Court defines an 이적단체 as an association whose purpose is to praise, encourage, propagate or sympathize with the activities of an anti-state organization or the person acting on its orders, or to propagate or incite rebellion against the State. Recognizing such an organization requires, under the principle of nulla poena sine lege forbidding analogical or expansive interpretation, that its line, purpose or activity pose a real risk of substantial harm to the State's existence and security or the free democratic basic order.

Under the National Security Act an 이적단체 is an organization that knowingly praises, propagates, sympathizes with the activities of an anti-state organization or its members or persons acting on its orders, or propagates or incites rebellion against the State; constituting or joining such an organization after it is recognized draws 1 or more years' imprisonment, and members fabricating or circulating false facts likely to cause social disorder draw 2 or more years. The two concepts are legally separate: 이적단체 designation is not attached to the whole organization automatically, and organizations designated as 이적단체 continued to operate after 1997.

Related legal concepts listed alongside the 반국가단체 include the 이적단체, 위헌조직, the 반공법 (abolished and merged in 1980), 외환죄, espionage, the National Security Act, and the doctrine of defensive democracy.

Comparable foreign security laws differ in provisions, interpretation and background, so direct comparison is impossible; notably the praise-and-incitement offence, which the National Human Rights Commission recommended abolishing, does not exist in some of them.

Application and criticism

From the enactment of the National Security Act to the end of the Chun Doo-hwan government, prosecutions and detentions under the Act and the Anti-Communist Act were heavy. Between 1980 and 1986 twelve persons were held incommunicado for 44 to 117 days at security police and intelligence facilities. From 1968 to 1990, of 593 persons with finalized death sentences, 93 were sentenced under the National Security Act and 29 under the Anti-Communist Act, and 254 were executed on charges including those laws.

Internationally, the US State Department repeatedly flagged the risk of abuse of the National Security Act in its human rights reports, and Amnesty International called for its repeal. On November 5, 1999 the UN Human Rights Committee recommended that the provision on praise of an anti-state organization be urgently amended as unreasonably broad and in breach of the International Covenant on Civil and Political Rights, and that the compliance-oath system be abolished. In August 2004 the National Human Rights Commission became the first state body to recommend full repeal of the National Security Act.