[Actually] Han Dong-hoon "There is a precedent for punishing North Koreans."

Justice Minister Han Dong-hoon said, "Of course, even in the Korean judicial system, it is possible to punish North Korean fishermen who were repatriated to North Korea during the Moon Jae-in administration."

This is a statement that came up in a recent parliamentary question.

In addition, he said, "There is a case in which the Republic of Korea investigated the crimes of sexual violence committed by North Korean defectors in China before they entered South Korea and sentenced them to prison sentences in court."

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In fact, whether or not there should be a precedent for punishment has been an important issue since the controversy over repatriation to North Korea.

This is because former Blue House National Security Office Director Chung Eui-yong had heard as the basis for the repatriation that "there is no precedent for punishing a heinous crime committed by North Koreans in North Korea against other North Koreans."

The passport countered that "there is a precedent for punishment."

Former lawmaker Kim Young-woo, who was the 20th National Assembly Chairman of the National Assembly, said several times, "If you commit a crime in North Korea, you have been tried in a South Korean court."

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Using the various remarks made by Minister Han Dong-hoon and the political circles as an opportunity, we looked at the 'controversy over the precedent of punishment'.

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■ Are there any cases of punishment?

none?

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First, we looked at the judgment that Minister Han Dong-hoon said.

As one minister said, a North Korean defector in his 30s was sentenced to three years in prison in a domestic court for sexual assault against another defector in China after defecting.

The judgment of the Uijeongbu District Court in January 2012.

However, this ruling is a judgment against North Korean defectors who escaped from North Korea and crimes against other North Korean defectors outside of North Korea.

As the former chief of staff Chung Eui-yong said, we looked at cases where the South Korean courts ruled for crimes committed by North Koreans before defecting, in North Korea, against other North Koreans.

A ruling was made in May 2014.

(Suwon District Court 2013 Gohap 846 Judgment) The summary is as follows.

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Born in Saebyeol-gun, North Hamgyong Province (now Gyeongwon-gun) in 1956, Mr. A was working in a North Korean coal mine in the early 2000s, helping the security guard to crack down on evacuation of the workshop.

Mr. A notices that a North Korean defector is calling a North Korean resident to get her daughter to defect.

She said she was staying in China after she fled North Korea and defected to South Korea.

The Security Agency decides to lure this woman through Mr. A and then arrest him.

In April 2006, Mr. A, who was instructed by the Security Agency, contacted this woman and said, "I will let her meet her daughter," and then asked her to come to her appointment, but this woman, who noticed her suspicious feeling, didn't come out 

In the same year, the North Korean authorities discovered that Mr. A had watched the South Korean movie 'Police Special Forces' and the drama 'Strong Up, Geum Soon-ah', and he was imprisoned in the prosecutor's office.

Hearing that he would be sentenced to severe punishment, Mr. A escaped the prosecutor's office in December, crossed the Tuman River, and defected to South Korea in 2007. 

After defecting, Mr. A worked at an automobile driving school and a home appliance manufacturing company, but he was arrested for fraudulent loan crimes.

Our security authorities obtained intelligence that Mr. A was trying to arrest a North Korean defector under the instructions of the Security Agency, and in December 2013, charged with collaborating with the Security Agency, arrested and indicted.

The law applied at that time was Article 4 of the National Security Act, which was a 'purposeful fulfillment' clause, "... Abducting or enticing a person … is punishable by death, life or imprisonment for a term of five years or more. (Abduction and inducement) Attempts to commit a crime will be punished."

The court sentenced the woman to five years in prison and five years of suspension of qualifications, saying, "I knew that handing over a woman to North Korea would result in heavy punishment.

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After all, the statement of former head Chung Eui-yong that “there is no precedent for punishment” is not true.

However, there is something to look at more closely.

Have North Koreans been punished for all the crimes committed in North Korea before defecting?

In conclusion, it is true that there are some such cases, but there are aspects that are difficult to see as general cases.

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■ Legal Status of North Korean Residents

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In fact, this issue is also an academic 'jurisprudence debate' that is more than a political conflict.

At the center of the controversy is the issue of the 'legal status' of North Koreans.

Article 3 of the Constitution, which appeared a lot in the news, is the starting point.

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Since the territory of the Republic of Korea includes not only the south of the 38th parallel but also the north, so the residents living in the north are also Korean citizens, and are naturally subject to the laws of the Republic of Korea.

In other words, even if North Koreans commit crimes in North Korea, it can be interpreted that it is justly right to punish them under South Korean law.

However, there is a difference between being reasonable and being effective.

The issue of how to deal with crimes that occurred in a somewhat unclear land that is legitimately South Korean territory, but effectively controlled by North Korea remains.

In fact, the judgment introduced above was very groundbreaking even at that time.

Paradoxically, North Koreans have rarely been investigated and punished in South Korea for crimes committed in North Korea.

At that time, the Suwon District Court also evaluated, "It is difficult to find cases where punishment was given for crimes committed in North Korea before defection. It is a judgment that can expand the discussion on the scope of punishment."

The judgment given by Minister Han Dong-hoon as a case was also evaluated as an exceptional judgment in which a North Korean defector was arrested and judged by a court for a crime committed in the process of defecting.

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Even before the verdict in this case, the victims had raised demands for punishment for the perpetrators, who are North Korean defectors who committed crimes in North Korea and defected to South Korea, but all of them were dismissed by government agencies.

- Kim Woong-gi (2015), A Study on the Punishment of Criminal Behaviors by North Korean Defectors in North Korea The

- Song Eun-yong et al. (2018), A study on the criminal nature of crimes committed by North Korean defectors in North Korea

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In the academic world, the above judgment was quite controversial, and related papers were published one after another.

In other words, it meant that it was legally controversial or needed to be supplemented, and there was also a suggestion that a separate effective alternative such as the enactment of a special law was necessary following the judgment at the time.

(Song Eun-yong et al., 2018) 

Since there have been no amendments to the relevant laws so far, the question raised at the time can still be considered valid.

This case has more implications than simply examining the words of ministers and former politicians.

Because it leaves implications for the 'void of the law'.

SBS reporter Park Won-kyung wrote the following in her recent coverage file.

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The legal debate has been dealt with in many other articles and the like.

However, it is important to note that the government at the time of November 2019 was not based on the laws currently claimed by the Democratic Party.

In order to apply the North Korean Defectors Act, it is necessary to first admit defection and then determine whether it is subject to protection. 

- Reporter Won-kyung Park, 'Repatriation of North Korean defectors to North Korea' issues summary, SBS News [Report file], last 20th.

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At the time of the controversy over the repatriation of North Korean fishermen in 2019, the last government interpreted the situation through a telescope of the abstract term 'the sincerity of defection'.

The omission of principles always harbors the seeds of controversy.

Now, three years later, self-rescue measures have been mobilized to fit this law and that law, and we are witnessing the last debate again.

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■ 

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Prior to reunification in 1989, East and West Germany did not recognize each other as nations as we do today.

Naturally, from the West German point of view, East Germans were viewed as their own citizens, and from the East German perspective, West Germans were viewed as their own citizens.

However, on December 21, 1972, the historic Treaty on Basic Relations between East and West Germany was signed.

The treaty contains the following:

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Although they do not recognize each other as foreign countries, they do not deny each other their international legal identity and independence.

In effect, it was a treaty that recognized each other's 'sovereignty' and was called the 'two-state model (Zwei-Staaten-Modell)'.

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West Germany's Willy Brandt (right) and East Germany's then Prime Minister Willy Stoff agree to the East-West German Basic Treaty.

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Controversy arose immediately in West Germany.

The above treaty violates the Constitution of the German Commonwealth, which regards East Germans as their own citizens.

In fact, the state of Bavaria has filed an unconstitutional review in the Federal Constitutional Court.

The following year, the Federal Constitutional Court ruled that the treaty was not unconstitutional.

East and West Germany are partly identical and can be viewed as a special relationship, so the content of the treaty is not problematic.

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Therefore, this treaty has a dual character.

It is essentially a treaty of international law, a treaty with specific content, and primarily a treaty regulating reciprocity.

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It would be wrong to think that all "two-state models" are incompatible with the Basic Law.

Der Vertrag hat also einen Doppelcharakter;

er ist seiner Art nach ein völkerrechtlicher Vertrag, seinem spezifischen Inhalt nach ein Vertrag, der vor allem inter-se-Beziehungen regelt.

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Unrichtig ist also die Auffassung, jedes "Zwei-Staaten-Modell" sei mit der grundgesetzlichen Ordnung unvereinbar.

- Decision of the Federal Constitutional Court of West Germany (1973), BVerfGE 36, 1

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The decision of the Federal Constitutional Court gave West Germany the basis for granting the status of 'quasi-foreigners' in relation to the criminal punishment of East German residents. 

Germany's case is frequently cited in studies on the status of North Koreans in Korea.

The Ministry of Justice also evaluated in a 1995 periodical publication, "The judgment at that time made West Germany treat East German residents as equivalent to foreigners in the 'criminal criminal domain'."

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Beyond the fact that East Germany is a de facto power, confirming the externally independent and independent state (Staatlichkeit) "is nothing more than confirming that the other parts of the whole Germany are organized in the state of the German Democratic Republic". said that it did not violate the Basic Law.

- Constitutional Court Research Institute (2019), <Status of North Korean Residents>, Unification Constitution Study 2019-D-1

- Ministry of Justice (1995), 「An Overview of Illegal Liquidation of the East German System in Unified Germany」, p.266.

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As in the case of Germany, if the status of a North Korean citizen as a semi-foreigner is judged unsuitable for staying in the country, repatriation may be justified.

There is room for application of the provisions of the Immigration Control Act that do not accept foreigners who may harm public safety.

Steve Yu is the very law that does not accept entry.

Other variables aside, if you look at the law mechanically, yes.

However, like Germany, we do not need to support the position that North Koreans should be given the status of 'quasi-foreigners'.

This, too, requires discussion.

What Germany's case suggests, even if it is the result of international variables such as the East-West German Framework Treaty and the decision of the Federal Constitutional Court, lies in the 'clearness' of its principles and procedures.

The task that the current controversy has posed to our community is probably the problem of bridging the gap between the constitution at the declarative level and the sub-law at the effective level.

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■ 

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As I said earlier, at the heart of this controversy is how to define North Koreans.

Since the judgment of the Suwon District Court in 2014, it has been pointed out that the law needs to be supplemented, and the academic community has suggested several alternatives, but nothing has changed.

Perhaps this controversy can be seen as an extension of that line.

In 2019, when the controversy arose, and in 2022, when the controversy was rekindled, it is natural to think of the 'vacuum of law'.

And the first place to be reminded of that void should be the National Assembly, which makes laws.

In fact, when the team looked at the minutes of the 2019 North Korean repatriation controversy, there were 21 official meetings that dealt with the controversy at the time, but there was never a meeting that discussed the bill.

The controversy over the repatriation to North Korea was only an attractive subject for political conflict, and there was no discussion of institutional complementation.

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Now the ball has passed to the prosecution.

The results of the prosecution's investigation to be announced in the future contain the seeds of an explosive conflict.

It has become more difficult to recall institutional complementation.

In addition, the political sphere is not very windy due to the leak of President Yoon Seok-yeol's 'internal gunshot' message and the controversy over the establishment of the Police Department of the Ministry of the Interior and Safety.

Due to the inertia of the National Assembly, discussing legislation in such a situation is nothing but idle voices.

We worked hard on the fact that unresolved issues are so precarious that we are shaken by the release of a few photos.

What should have been done after the 2014 ruling, what should have been done when the controversy erupted in 2019, and what should have been done when the controversy recurs in 2022 is not much different.

If we do not organize this again, the conflict will only be postponed and will inevitably be repeated.