대북전단등 살포 금지 조항에 대한헌법재판소 2023. 9. 26. 선고 2020헌마1724 결정의 분석과 평가

The Constitutional Court of Korea issued two major rulings related to North-South issues on September 26, 2023. One ruling was on the constitutionality of a provision in the “Inter-Korean Relations Development Act” that prohibits the distribution of anti-North Korean leaflets and imposes criminal penalties for violations. The other ruling upheld the constitutionality of the provisions in the National Security Act concerning acts of treason (Decision No. 2017Hun-Ba42, September 26, 2023). This article provides a commentary on the unconstitutionality ruling regarding the prohibition of anti-North Korean leaflets (Decision No. 2020Hun-Ma1724, September 26, 2023). The Constitutional Court viewed the provision in question as not merely regulating the method of expression related to the distribution of leaflets from South Korea to North Korea but as a regulation of the content of expression that criticizes the North Korean regime. Consequently, the court applied a strict standard of judicial review. However, the court did not examine the implications of the provision’s title, which is “Prohibition of Violations of Inter-Korean Agreements.” The omission in the judgment regarding the meaning of violations of the Inter-Korean Agreement could be interpreted as an indication that the Constitutional Court intends to disregard the legal effect of such agreements. The issue arises from the fact that in the National Security Act case decided on the same day, the Constitutional Court explicitly stated that “North Korea is merely an anti-state entity” in the interpretation of Article 3 of the Constitution, which concerns territorial integrity. This stance marks a departure from the court’s previous position that acknowledged North Korea’s dual status considering the realities of inter-Korean relations. While the court was silent on the legal effect of Inter-Korean agreements in the leaflet ban ruling, it took a rigid and static stance in the National Security Act decision regarding North Korea’s legal status, which has been a major obstacle in peace treaty negotiations. This stance, despite the practical need to consider the current tensions in inter-Korean relations, is open to criticism from the perspective of efforts by the government and legislative bodies to establish normative power for Inter-Korean agreements and maintain consistent North Korean policies. As the highest authority in constitutional interpretation, the Constitutional Court’s interpretation of Article 3 (territorial provisions) and Article 4 (peaceful unification provisions) of the Constitution reflects and impacts the reality of inter-Korean relations. Over the 70 years of division, inter-Korean relations have oscillated between reconciliation and conflict, suggesting the possibility of a future shift towards reconciliation and cooperation. Therefore, the Constitutional Court’s stance on inter-Korean relations and North Korea’s legal status should remain forward-looking. This article examines the implications of the ruling on the prohibition of anti-North Korean leaflets and discusses the need for the court’s perspective on inter-Korean agreements and North Korea’s legal status to remain open to future developments.