The Constitutional Court has ruled that the provisions of the Inter-Korean Exchange and Cooperation Act, which mandate that bringing goods from North Korea requires the approval of the Minister of Unification, are constitutional.

This conclusion comes 4 years and 3 months after a constitutional complaint was filed in June 2022, a case that drew significant attention in the legal community after a court took the unusual step of publicly criticizing the Constitutional Court for delaying its review.

On September 17, the Constitutional Court dismissed a constitutional complaint filed by Chin Chun-gyu, CEO of Tongil TV, regarding Article 13, Paragraph 1 of the Inter-Korean Exchange and Cooperation Act, with an 8-to-1 decision upholding the law's constitutionality.

Justice Jung Gye-sun issued a dissenting opinion, stating that the provision violates the principle against excessive restriction.

Chin was indicted in October 2020 on charges of bringing North Korean books, video materials, and the Rodong Sinmun through Incheon International Airport in August 2018 without receiving approval from the Minister of Unification.

Article 13, Paragraph 1 of the Inter-Korean Exchange and Cooperation Act stipulates that "anyone wishing to take goods out of or bring them into [South Korea] must obtain approval from the Minister of Unification regarding the items, transaction type, and payment method."

In May 2022, the first-instance court acknowledged the charges and sentenced Chin to a fine of 3 million won.

During the first trial, Chin applied for a motion for a constitutional review of the legal provisions applied to him, but the request was dismissed.

Following this, Chin appealed the ruling and directly filed a constitutional complaint with the Constitutional Court in June of that year.

However, the Constitutional Court also concluded that the current legal provision requiring approval from the Minister of Unification prior to bringing in goods complies with the Constitution, considering "the sensitive and critical nature of inter-Korean relations."

The Constitutional Court stated, "If North Korean goods are arbitrarily brought in without approval, it is difficult to monitor them ex post facto. Given the sensitive and special relationship between the two Koreas as well as the complexity of international relations, bringing them in without approval carries the potential to cause harm, so regulating such unauthorized entries with criminal sanctions cannot be seen as exceeding legislative discretion."

The Constitutional Court further explained, "It is an inevitable aspect for the government to establish standards and coordinate and regulate material exchanges between the two Koreas in a unified manner in order to respond to North Korea's provocative acts."

It added that requiring the Minister of Unification to review items and grant approval under circumstances where restrictions on inter-Korean exchanges are inevitable is intended to contribute to the expansion of inter-Korean exchanges and peaceful unification, and therefore "does not violate the constitutional principle of peaceful unification."

Meanwhile, Justice Jung Gye-sun issued a dissenting opinion, arguing that requiring approval for all items except those subject to comprehensive approval and imposing criminal punishment for violations is excessive.

Justice Jung explained, "In cases of sporadic shipments of goods or when travelers inadvertently acquire items during a visit to North Korea that they could not have anticipated obtaining, it is realistically difficult to prepare advance approval application documents, and there is a high possibility that they would simply abandon acquiring the goods altogether."

This case also drew attention as the first instance where a court publicly took issue with the Constitutional Court's delay in review.

After receiving the case in May 2022, the appellate criminal division suspended proceedings, stating it would await the outcome of the constitutional complaint.

The appellate panel, Criminal Appeals Division 50 of the Seoul Central District Court (Presiding Senior Judge Jeon Bo-sung), then issued an explanatory statement in June of this year, publicly criticizing the court by stating, "Just as all state power is bound by the Constitution, the Constitutional Court must also be bound by it," and adding, "The delayed review by the Constitutional Court has infringed upon the defendant's constitutional fundamental rights, such as the right to a speedy trial."

The court also stated that, in accordance with Article 107, Paragraph 2 of the Constitution, it would begin reviewing whether the Constitutional Court's omission—failing to perform duties it ought to have fulfilled—infringed upon the fundamental rights of Chin, who filed the constitutional complaint.

This was interpreted by some as a rekindling of the standoff between the two institutions surrounding the implementation of the constitutional court appeal system this year.

At the time, the Constitutional Court maintained that "since proceedings can move forward regardless of the outcome of the constitutional complaint, the court's claim that trials cannot proceed due to delayed reviews is difficult to understand," and refrained from submitting the opinion requested by the court.

(Photo: Yonhap News)