국가보안법 제7조의 남용사례와 위헌성에 관한 연구

The National Security Act has infringed upon human rights while preservingthe existence and safety of the nation. It is the Article 7 of the National SecurityAct, which is most widely abused. Some argue for the abolition of the Article 7of the National Security Act which they consider is contrary to the principle ofclarity over the principle of legality and violates the freedom of expression andconscience, and furthermore, is abused as a means of maintaining the regime, notthe existence of the state, which is an argument contradictory to the claim thatthe Article 7 of the National Security Act should be maintained because it is thelast bastion of democracy for the safety and existence of the state. 88)The primary objective of this paper is to examine the meaning of ‘clear andpresent danger’, which have been discussed in academic circles thus far to reachthe conclusion that the Article 7 of the National Security Act should beabolished, through the rulings of Constitutional Court and Supreme Court. Although it may be considered desirable to abolish the Article 7 to eliminatethe abuse of the National Security Act, it is not feasible to immediately abolishthe Article 7 due to the reality of our society. Therefore, this author presentsthe actual examples related to the abuse of National Security Act in order toprovide justification for abolishing the Article 7. Particularly, the secondaryobjective of this paper was to hasten the abolition of Article 7 of the NationalSecurity Act while criticizing the excessive indictment initiated by the prosecutorsby looking into Choi Bo-gyeong incident that recently occurred in our region. Meanwhile, the recent ruling by the lower court suggested that our society canfilter out the arguments identical to the claims of the North Kore in determiningwhether certain publications would constitute the “enemy-benefiting” materials asprescribed in the Article 7, and particularly, there have been a growing number of incidents in which the cases result in acquittal on the grounds of the freedomof thought and expression under the Constitution. However, the recent precedents of the Supreme Court suggest that theSupreme Court justices, who are required to judge on the basis of law andconscience, seem to make judgement on the basis of the inclination of theregime. In other words, they do not seem to adequately interpret the lawalthough the punishment pursuant to the Article 7 of the National Security Actrequires the validation of substantial harm or danger posing threat to theexistence and safety of the state or free democratic basic order based on theacknowledgement that the basic order of free democracy is likely to bejeopardized. In particular, the lower court's acquittal leads to the conservativemedia to denounce the left-leaning judges as pro-communist judges, therebyaffecting the ruling in the Supreme Court. Thus, the final objective of this paperis to ensure that the Supreme Court, the last bastion of judicial branch, to makeindependent judgement in relation to whether there is any substantial harm ordanger posing threat to the existence and safety of the state or free democraticbasic order without being affected by public opinion. The approach to theinterpretation of such substantial harm or danger is expected to determine thecontinuation or abolition of the Article 7 of National Security Act.