South Korea's Constitutional Court has ruled that a provision of the Inter-Korean Exchange and Cooperation Act requiring approval from the unification minister to bring goods in from North Korea does not violate the Constitution. The decision came four years and three months after the petition was filed in June 2022. A lower court publicly raised the issue of the delay in June this year, prompting analysis that the long-running turf dispute between the two institutions could flare up again following the introduction of constitutional appeals against court rulings.
The court said on the 17th that it upheld the constitutionality of Article 13, Paragraph 1 of the Inter-Korean Exchange and Cooperation Act and related provisions in an 8-1 ruling, in a case brought by Jin Chun-kyu, head of Unification TV.
The case began when Jin, who was fined 3 million won ($2,200) in a first trial on charges of violating the act, filed a constitutional petition against Article 13, Paragraph 1 and other provisions. Jin is accused of bringing North Korean books, video materials and copies of the Rodong Sinmun newspaper into the country through Incheon International Airport in August 2018 without approval from the unification minister. Article 13, Paragraph 1 states that anyone seeking to take goods out or bring them in must obtain the unification minister's approval covering the items, the form of the transaction and the payment method.
The court found that the provision requiring prior approval from the unification minister is consistent with the Constitution. "If North Korean goods are brought in at will without approval, it is difficult to exercise oversight after the fact," the court said. "Given the sensitive and special relationship between the two Koreas and the complexity of international relations, such acts carry the potential to cause harm, and it is difficult to conclude that regulating unapproved imports through criminal sanctions exceeds legislative discretion."
The court also found that the provision satisfies the balance-of-interests test. "Considering the sensitivity and gravity of foreign relations and inter-Korean relations, it is difficult to conclude that the degree of restriction on general freedom of action resulting from the inability to bring in unapproved goods outweighs the public interest in ensuring that inter-Korean exchange and cooperation is pursued consistently," the court said.
The court judged that under conditions in which limits on inter-Korean exchange are unavoidable, having the unification minister review and approve items serves to expand exchange between the two Koreas and contribute to peaceful unification. "It does not violate the constitutional principle of peaceful unification," the court said.
Justice Jeong Kye-sun dissented, arguing that the provision violates the principle against excessive restriction. "In cases involving a one-off import, or where travelers acquire goods during a visit to North Korea that they could not have anticipated, it is practically difficult to prepare approval documents in advance, and there is a strong possibility that they would give up acquiring the goods altogether," the justice said.
The lower court had publicly criticized the delay after Jin's petition went roughly four years without a ruling from the Constitutional Court. The 50th criminal appeals division of the Seoul Central District Court, presided over by Senior Judge Jeon Bo-seong, had put the case on hold, taking the view that the outcome of the constitutional petition was a precondition for its own ruling in the criminal case. In June this year, the division concluded that Jin's constitutional rights were being infringed and sent the Constitutional Court a request for its opinion on the reasons for the delay. The Constitutional Court did not submit a response.
The 50th criminal appeals division of the Seoul Central District Court is scheduled to hold a hearing on the 21st.
