## Facts

- Three defendants in a pending criminal case were indicted under National Security Act (NSL) Article 7(1) and 7(5) for possessing and distributing expressive materials alleged to benefit an anti-state organization.
- Article 7(1) criminalized praising, inciting, sympathizing with, or otherwise benefiting an anti-state organization, its members, or those acting in concert with it.
- Article 7(5) criminalized making, importing, reproducing, possessing, carrying, distributing, selling, or acquiring documents or other expressive materials for the purpose of committing the acts described in Article 7(1)–(4).
- The trial court referred the constitutionality of Article 7(1) and 7(5) to the Constitutional Court during the criminal proceedings.
- The challengers argued the provisions were impermissibly vague and overbroad, violated the principle of legality in criminal law, and infringed constitutional protections for freedom of expression.

## Issues

1. Whether NSL Article 7(1) and 7(5), as written with indeterminate terms (e.g., praise, incite, sympathize, benefit, other means), violated the criminal-law definiteness requirement and rule-of-law limits by enabling arbitrary enforcement.
2. Whether the provisions, as applied to expressive activity and possession/distribution of materials, unconstitutionally restricted freedom of expression.
3. Whether the provisions should be invalidated or upheld only through a narrowing construction that limits punishment to conduct posing a serious and specific danger.

## Decision

- The Court held Article 7(1) and 7(5) constitutional only under a limiting interpretation.
- The provisions could be applied solely when the relevant acts endanger the existence and security of the state or create a clear danger to the basic order of liberal democracy.
- The Court reasoned that, although the statutory language was broad and could chill protected expression, a constitution-conforming interpretation could preserve legitimate national-security aims while excluding unconstitutional applications.
- The Court supplied definitions to constrain enforcement:
  - “Endangering the existence and security of the state” covered threats to independence, territorial integrity, and the functioning of constitutional institutions.
  - “Harming the basic order of liberal democracy” covered efforts to destroy or transform the constitutional order grounded in fundamental rights, separation of powers, representative institutions, plural party politics, elections, market-based private-property order, and judicial independence.
- A dissent would have declared the provisions unconstitutional for vagueness and for restricting expression without a clear-danger requirement, and criticized conditional-constitutionality rulings as improper.

## Legal Principles

- Criminal statutes restricting expression must satisfy definiteness requirements; vague, open-ended terms risk arbitrary enforcement and unconstitutional chilling effects.
- When statutory language permits multiple plausible interpretations, courts may adopt a constitution-conforming interpretation and exclude interpretations that would yield unconstitutional results.
- Restrictions on expression justified by national security are permissible only when limited to conduct that endangers state security or poses a clear danger to the constitutional order of liberal democracy.
- Possession or distribution of expressive materials may be punished under national-security law only when tied to the same clear-danger threshold, not based on abstract sympathy or speculative benefit.

## Conclusion

The Court preserved NSL Article 7(1) and 7(5) by narrowing them to reach only expressive conduct and related materials activity that creates a clear danger to state security or the basic order of liberal democracy, while recognizing that the provisions’ broad wording would otherwise threaten legality and freedom of expression.


Praising & Encouraging Under National Security Act (S. Kor. Const. Ct.), 2 KCCR 49, 89 Hun-Ka 113 (1990)