On the 17th, police booked a man in his 40s for flying large balloons carrying "anti-North Korean leaflets" toward North Korea. This incident occurred three days after President Lee Jae-myung ordered "strict measures" against the distribution of such leaflets.
This man is said to have been charged with violating the Aviation Safety Act. Originally, the provision punishing the distribution of anti-North Korean leaflets was included in the Inter-Korean Relations Development Act. However, this provision was declared unconstitutional by the Constitutional Court in 2023. At that time, the Constitutional Court noted that "the provision shifts the responsibility for provocations from North Korea due to the distribution of anti-North Korean leaflets onto the distributor," adding that "the provision excessively infringes on the freedom of expression of the people by over-exercising the state's punitive power."
As a result, legal circles have pointed out that "the current government is attempting to apply the Aviation Safety Act and other laws as a workaround, instead of the unconstitutional Inter-Korean Relations Act," and that it "is disregarding the intent of the Constitutional Court’s ruling."
◇ President Lee: 'Strict measures' against anti-North Korean leaflet distribution… Police distributing guidelines on punishment
President Lee Jae-myung instructed to prepare measures in response to the distribution of anti-North Korean leaflets during a Cabinet meeting on the 10th. Measures using the Aviation Safety Act, Disaster Safety Act, and High-Pressure Gas Act for punishment were mentioned. Following the news of a private organization's distribution of anti-North Korean leaflets on the 14th, President Lee conveyed the policy of strict measures through a Spokesperson.
Accordingly, the police also reportedly distributed the 'guidelines for responding to the distribution of anti-North Korean leaflets' to the front lines. The guidelines include policies such as 'actively block within the current legal framework' and 'immediate voluntary investigation and arrest if criminal punishment is possible.' Additionally, it specifies that the High-Pressure Gas Act will be applied concerning large balloons carrying anti-North Korean leaflets, the Disaster Safety Act for access to border areas with North Korea, and the Aviation Safety Act for sending off large balloons.
◇ Court: 'Distribution of anti-North Korean leaflets is a public interest activity informing about the realities of the North Korean regime'
The provision punishing the act of distributing anti-North Korean leaflets was added to the Inter-Korean Relations Development Act during the Moon Jae-in administration in December 2020. When a group of defectors distributed 500,000 anti-North Korean leaflets over North Korean airspace, Kim Yo-jong, the first deputy director of the Labor Party, remarked in June of the same year that "a law should be made to stop the tricks of these garbage people." The Ministry of Unification stated just 4 hours and 40 minutes later that it was "preparing an anti-North Korean leaflet prohibition law." A month later, in July, then-Governor of Gyeonggi Province Lee Jae-myung also stated that "those who distribute anti-North Korean leaflets should be forcibly expelled," adding, "a dirty peace is better than a glorious victory." Ultimately, the Democratic Party forced through a law in the National Assembly that allowed punishing the act of distributing anti-North Korean leaflets with up to 3 years in prison.
Subsequently, the Constitutional Court ruled in September 2023 that the prohibition and punishment provision of the anti-North Korean leaflets in Article 24, Paragraph 1, Subparagraph 3 of the Inter-Korean Relations Development Act was unconstitutional.
At that time, 7 of the 9 judges of the Constitutional Court expressed opinions of unconstitutionality. The judges stated that the provision "excessively restricts freedom of expression." They argued that prohibiting not only leaflets but also the distribution of various goods, along with punishments for attempted crimes and the possibility of imprisonment, constitutes an excessive exercise of state punitive power.
In particular, judges Kim Hyung-doo, Lee Eun-ae, Lee Jong-seok, and Lee Young-jin viewed the prohibition and punishment of anti-North Korean leaflets as shifting the responsibility for provocations from North Korea onto the leaflet distributor. The provision states that "it should not harm or create serious risks to the life and body of the people," while prohibiting the distribution to North Korea. In response, the judges stated that "the responsibility for provocations from North Korea due to the distribution of anti-North Korean leaflets is placed onto the leaflet distributor."
Earlier, a similar ruling had come from the Supreme Court. In April 2023, the Supreme Court stated, "The distribution of anti-North Korean leaflets serves a public role in informing North Korean residents of the realities of their regime." It added, "It cannot be definitively concluded that the distribution of anti-North Korean leaflets constitutes an act harmful to the public interest."