Unconstitutional is Aggravated Punishment for Repeated Commitment of Incitement

The Constitutional Court held that Section 13 of the National Security Act is unconstitutional. The section provides that in case where a person, who has been previously convicted of violation of the act, committees a crime of incitement again, the person may be sentenced up to death.

By the decision of the Constitutional Court, the provisions concerning incitement in Section 13 become no longer enforceable. Therefore, Congress should amend the act immediately.

The Seoul District Court moved on its own and raised the constitutionality issue first. The district court was holding a trial of Hong, who was indicted twice for violation of the act by selling books on Marxism and Leninism. The Constitutional Court granted certiorari, and held a joint section. In its unanimous opinion, the court ruled that the section at issue was unconstitutional.

The court held, "Section 13 makes it possible to impose the capital punishment on a person just for repetition of a petty crime such as incitement. Therefore, the court found that the relevant provisions in the section at issue herein impose a harsh punishment that our Constitution prohibits."

The Constitutional Court spokesperson said, "The court found unconstitutional the provisions only when a person committees incitement as the latter crime. Therefore, if a person committees a more serious crime like treason later, the provisions will still validly apply."

Section 13 of the National Security Act provides, in relevant part, "In case where a person, who has committed treason or similar crimes and served a sentence term for said violation, committees crimes like incitement, the person may be sentenced up to death."

In December, 1999, Hong was sentenced to one year in prison with one-year deprivation of privileges, even after a three-year suspended sentence was rendered on him in January of 1999. Then, the Seoul District Court filed for a certiorari with the Constitutional Court, alleging that Section 13 of the National Security Act violates the Constitution for its exclusion of mitigating circumstances in sentencing a capital punishment.

Wi-Yong Jung viyonz@donga.com