헌법재판소의 대북전단 살포금지 및 처벌규정의 헌법위반성 판단에 대한 검토

On September 26, 2023, the Korean Constitutional Court ruled in Article 24, Paragraph 1 Number 3 of the Act on the Development of Inter-Korean Relations, which prohibits distributing leaflets, etc. as a violation of the Inter-Korean Basic Agreement, causing harm to the lives and bodies of citizens or causing serious danger. It was decided that the part related to Article 24, Paragraph 1, No. 3 of Article 25 of the same Act, which provides for punishment in cases of violation thereof, infringes on the freedom of expression, which is the basic right of the applicants of this constitutional complaint and it was unconstitutionality complaint. In this decision, the Korean Constitutional Court decided that elements of an offence (Tatbestand) for punishment of distribution of anti-North Korea leaflets in the Korean border line stipulated in this legal provision violate fundamental rights under the Korean Constitution. In the 2023 review of precedents by the Supreme Court of Korea and the Constitutional Court of Korea related to the ban on distributing leaflets against North Korea, Article 24, Paragraph 1, No. 3 of the Act on the Development of Inter-Korean Relations, which prohibits distributing leaflets against North Korea, is an important standard of judgment. It must be taken into account that the prohibition on mutual slander and defamation in Chapter 1, Article 3 of the Inter-Korean Basic Agreement has been implemented through law within the territory of the Republic of Korea. In order to attempt to analyze the treaty and normative nature of the inter- Korean agreement, which is the direct cause of the creation of this legal regulation, Germany, which has had a significant influence on the formation of important provisions of the law on the development of inter-Korean relations in Korea from a comparative law perspective, It is very important to examine the East-West German Basic Treaty (Grundlagenvertrag) and the precedents of the German Federal Constitutional Court on it. With regard to the ruling of the German Constitutional Court on the East- West German Basic Treaty, the precedents of the Korean Supreme Court and the Korean Constitutional Court related to the legal interpretation of the Act on the Development of Inter-Korean Relations, which can be seen as implementing legislation of the Inter-Korean Agreement as well as the Inter- Korean Agreement, are unconstitutional, and the excessive political nature of the Inter-Korean Agreement It can be seen that political uncertainty and ambiguity have been appropriately removed through the exercise of constitutional control over what is the subject of political controversy.