criminal laws, such as the National Security Act and the Assembly and Demon-
stration Act, did not fall under the scope of protection guaranteed by freedom of
conscience, because the exclusion of parole could not constitute the deprivation
of a right but a privilege; and thus the original legal status of such inmates has not
changed.^37 The dissenting opinion presented by two justices argued that the
requirement of an oath to abide by law to applicants for parole can amount to
the deprivation of “expected” liberty, and thereby have a direct impact on their
conscience.^38
The issue of “conscientious objection” is another example showing the narrow
stance taken by the KCC in terms of the scope of freedom of conscience. In 2004 ,
the KCC held that the Military Service Act, which criminalizes those who, upon
the receipt of a conscription notice, fail to enlist or to report for duty without
justifiable causes, is constitutional because freedom of conscience is not envisaged
to safeguard an individual’s right to deny the duty to provide national defense
and to request the state to introduce an alternative service system for them.
The dissenting opinion is that the lack of minimum legislative efforts to provide
an alternative service system by forcing only active military service fails to conform
to freedom of conscience.
39
Freedom of expression
Article 21 of the Constitution guarantees freedom of speech and of the press, along
with freedom of assembly and association. These freedoms are reinforced by the
express prohibition of licensing or censorship of speech and the press, and of
licensing of assembly and association in Article 21 ( 2 ). The KCC has been anxious
to control executive agencies’ censorship by declaring that such prohibition of
censorship is an absolute ban so that any law prescribing a kind of prior content
regulation can be invalidated. In fact, the KCC struck down a number of laws
introducing various content-based review systems.^40
(^37) Constitutional Court Decision 98 Hun-Ma 425 , 99 Hun-Ma 170 · 498 (consolidated), April 25 ,
2002 ,Korean Constitutional Court Reports, Vol. 14 ,No 1 , 351 , 364 – 6. For a sketch of this
case in English, see also Constitutional Court of Korea,The Twenty Years of the Consti-
tutional Court of Korea,pp. 238 – 40.
(^38) Constitutional Court Decision 98 Hun-Ma 425 , April 25 , 2002 ,Korean Constitutional Court
Reports, Vol. 14 ,No 1 , 351 , 353 – 4.
(^39) Constitutional Court Decision 2002 Hun-Ka 1 , August 26 , 2004 ,Korean Constitutional
Court Reports, Vol. 16 ,No 2 , Part 1 , 141.
(^40) This tendency initiated from Constitutional Court Decision 93 Hun-Ga 13 , 91 Hun-Ba 10
(consolidated), October 4 , 1996 ,Korean Constitutional Court Reports, Vol. 8 ,No 2 , 212 ,
225 , concerning the Korea Public Performance Ethics Committee, and continued in the
first decade of the twenty-first century, e.g.. Constitutional Court Decision 2000 Hun-Ga 9 ,
August 30 , 2001 ,Korean Constitutional Court Reports, Vol. 13 ,No 2 , 134 , 150 – 1 , concerning
the Korea Media Rating Board.