Pro-Enemy Organization

Legal Basis and History

The National Security Act passed the Constituent National Assembly on 19 November 1948 by 84 votes to 3 and entered force on 1 December 1948 as Act No. 10, drafted after the Yŏsu-Sunch'ŏn events to punish acts endangering state security. Korean-language accounts state it was based on the Japanese Empire's Peace Preservation Law and Security Law, while English-language accounts say it was "reportedly inherited" from the Peace Preservation Law used to suppress the independence movement; that attribution difference is left as it stands in the sources. The 1949 amendment modeled it on that law, the 1962 amendment made repeat offenders liable to a maximum of death, and the 1980 amendment (31 December) abolished and merged the Anti-Communism Act into it. After the Constitutional Court's 1990 limited-constitutionality ruling (89Hŏn-Ka113), the 1991 amendment wrote in the principle of minimum application and narrowed the scope of the offence, and Article 1(2) now requires the Act to be construed and applied only to the minimum necessary, without extensive construction or unreasonable restriction of constitutionally guaranteed fundamental rights. A 1992 ruling (90Hŏn-Ma82) struck down the extension of detention periods. The Act has been amended 13 times, the 13th on 6 January 2016 (effective 7 July 2017).

Distinctions and Interpretive Standards

Article 2(1) defines an anti-state organization as a domestic or foreign association or group whose purpose is state rebellion. Article 7(1) punishes praise, encouragement, propaganda and sympathy by not more than seven years' imprisonment, Article 7(3) punishes forming or joining an organization for that purpose by at least one year, and Article 7(5) punishes producing, importing, copying, possessing, transporting, distributing, selling or acquiring documents and expressive materials for that purpose. The organization provision is distinct from the enemy-benefiting expressive materials offence. On the Article 7(5) offence the Supreme Court held it to be a purpose crime (목적범) requiring, beyond knowledge, a proved purpose to commit an enemy-benefiting act, that the prosecution bears the burden of proving that purpose, and that mere awareness of a material's character may not be presumed to establish it; it overturned prior precedent (90도2033) that had presumed such purpose. For expressive materials to qualify, their content must be actively and aggressively threatening to the state's existence and security and the free democratic basic order, judged by overall content, motive for writing, manner of the expressive act, external connections and the circumstances at the time.

The Supreme Court held that even where an organization's formal charter omits such a purpose, it may be deemed an enemy-benefiting organization if its asserted content, its activities and its ties through communication with an anti-state organization show it substantively took such acts as its purpose and its actual activities carried a risk of substantial harm to the state's existence or security or the free democratic basic order; a formally registered social organization that even received government subsidies was nonetheless held to be one. A four-justice dissent (Pak Si-hwan, Kim Chi-hyŏng, Yi Hong-hun, Chŏn Su-an) argued for the clear and present danger standard, holding that mere tendency or probability, abstract possibility of harm, or the content of thought alone cannot establish the risk element, and that a concrete real possibility of harm is required. This dissent is distinct from the separate dissent by Justice Kim Yŏng-nan on the purpose requirement for the expressive materials offence.

Application and Controversies

The organization provision belongs to Article 7, the most-criticized part of the National Security Act, whose abolition international bodies and human rights organizations have demanded. Amnesty International called the Act a tool to harass and arbitrarily prosecute individuals and civil society organizations peacefully exercising freedom of expression, opinion and association, reporting 90 people charged under it in 2011 and a 95.6% increase between 2008 and 2011. A 2004 abolition attempt under the Roh Moo-hyun government failed amid conservative opposition, and a planned 2021 repeal led by Democratic lawmaker Min Hyung-bae also failed; a 2021 survey showed 45% support and 40% opposition to abolishing Article 7. On 26 September 2023 (2017Hŏn-Pa42 and others), its eighth ruling on Article 7, the Constitutional Court held Article 7(1) constitutional by 6-3 and Article 7(5) constitutional by 6-3 as to production, transport and distribution and by 4-5 as to possession and acquisition, while unanimously dismissing (각하) the constitutional complaints against Article 2(1) and Article 7(3), so the organization provision was not decided on the merits. The Act's infobox status is "in force (amended)", and the Korean-language entry likewise gives its status as currently in force; the term therefore has no documented end date.

Organizations adjudicated as enemy-benefiting include Pŏmminryŏn (1989), Minjat'ong (1990), the southern headquarters of Pŏmch'ŏnghangnyŏn (1993), the southern headquarters of Pŏmminryŏn and Hanchongryŏn, the Korean Youth Organizations Council (2004), the Solidarity for the Practice of the North-South Joint Declaration, Silch'ŏn Yŏndae (2010), the Consultative Conference for the Promotion of Federal Reunification of Our Nation, Yŏnbang T'ongch'u (2012), Korea Solidarity and the 6.15 Ch'ŏnghak Yŏndae (2016). The National Intelligence Service compilation dates the Hanchongryun ruling to 15 May 1998, while Korean-language lists give 1997 for the Korean University Students' Council ruling and record that the southern headquarters of Pŏmminryŏn and Hanchongryŏn continued to operate after it; the discrepancy is left attributed to each source. Decision 2010도1189 upheld the conviction of the Solidarity for the Practice of the North-South Joint Declaration, noting it was formed around organizations that had participated in Pŏmminryŏn, that its platform items such as "anti-US self-reliance" matched positions consistently asserted by North Korea, that members' documents praised North Korean Juche, Sŏngun politics and the nuclear test, and that it received instructions from a North Korean southward-operations organ. The expressive materials in that case, including the 2008 delegates' conference resource book and the booklet "Uri minjok kkiri", were also held to be enemy-benefiting materials, which is how the organization ruling and the expressive materials offence became intertwined.

A designation ruling, however, does not by itself entail forced dissolution. The southern headquarters of Pŏmminryŏn was formed on 25 February 1995 and adjudicated in 1997, with prosecutors not indicting it or its members between 1998 and 2007, and it declared its own disbandment only on 17 February 2024. The National Intelligence Service compilation labels some rulings as dissolution, but that label describes the outcome rather than a court-ordered dissolution. A police report submitted to the National Assembly's regular session in 1998 records 2,001 persons proceeded against for forming or joining enemy-benefiting organizations, of whom 1,531 were arrested, 405 were not arrested and 65 were transferred, with arrests of 92 (1991), 137 (1992), 44 (1993), 185 (1994), 183 (1995), 344 (1996), 612 (1997) and 404 (1998); this is one source's cited figure, not an official national total. Itemized tables for 2013–2017 show the organization charge as the largest category in 2013 with 102 of 129 persons booked, while booked persons fell to 42 in 2017. Other well-known uses of the Act include the 1999 banning of the students' union Hanchongryun and the 2003 spy case against Song Du-yul; the severest penalty available under the Act is death, most famously in the People's Revolutionary Party Incident, where eight citizens were falsely charged and executed.