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서울중앙지방법원 2017.4.27. 선고 2013재고합47 판결

가.내란선동나.내란음모다.국가보안법위반라.반공법위반

Cases

2013 Inventory 47, 2014 Inventory 10 (combined)

(a) Encouragement of insurrection;

(b) The conspiracy of insurrection;

C. Violation of the National Security Act

(d) Violation of public law; and

Defendant

1. (a) b. (c) d. A;

2. (c) d. B

3. b. (c) d. C

4. b. D. D.

5. (a)(c)(d) The network E;

6. D. F

Appellants

1. Defendant A

2. Defendant B

3. Defendant C.

4. Defendant D

5. Spouse G of Defendant Sea E

6. Defendant E’s H

7. Defendant F

Prosecutor

The highest leaves (prosecutions) and confluences (public trial)

Defense Counsel

Law Firm I (For the defendant)

J., Attorney J

Judgment Subject to Judgment

Seoul Criminal District Court Decision 73 Gohap387, 73 Gohap405 decided Nov. 1, 1973

Part on Defendants in the Judgment

Imposition of Judgment

April 27, 2017

Text

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

Reasons

1. Facts charged;

A. It is as shown in the attached indictment.

B. The legal provisions applied by the prosecutor to each act of the Defendants as stated in the attached facts charged are as follows.

1) Articles 90(2), 87, and 87 of the Criminal Act regarding the commission of conspiracy for insurrection, and Article 1 subparag. 2 of the former National Security Act (amended by Act No. 3318, Dec. 31, 1980; hereinafter referred to as the “former National Security Act”) as to the commission of leading duties as a person who forms the K political party which is an anti-government organization, and Article 5(1) of the former Act on the part of members and meetings of anti-government organizations (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply).

2) The applicable provisions to Defendant A are Articles 90(2) and 87 of the Criminal Act, and Article 1 subparag. 2 of the former National Security Act, Articles 90(1), 87, and Article 4(1) of the Anti-Public Act, and Article 5(1) of the Anti-Public Act, as to the conspiracy of insurrection with respect to the conduct of an executive officer or leading mission with respect to the commission of an anti-government organization, and Articles 90(1), 87, and 90(1), and 87 of the Criminal Act regarding the conspiracy of insurrection with respect to the conduct of an anti-government organization.

3) As to Defendant B, C, and D’s respective applicable provisions of law, and ① the executive officer or leading duty as a member of an anti-government organization, Article 1 subparag. 2 of the former National Security Act regarding the conspiracy of insurrection, ② Articles 90(1), 87, and 3 of the Criminal Act concerning the conduct of anti-government organization, Article 4(1) and (4) of the Anti-Public Act regarding the conduct of anti-government organization’s activities, Article 5(1) of the Anti-Public Act is applicable.

4) Article 3(1) of the Anti-Public Act regarding Defendant F’s membership of an anti-government organization, and Article 4(1) of the Anti-Public Act regarding the fact that the applicable provisions to Defendant F’s membership in the Republic of Korea (an anti-government organization), and Article 5(1) of the Anti-Public Act regarding the fact that an anti-government organization’s membership in the Republic of Korea (an anti-government organization)

2. Progress of the case;

A. The Seoul Criminal Court found Defendants and M, N,O, P, and Q guilty of all the facts charged in the instant case involving insurrection, conspiracy of insurrection, conspiracy of insurrection, violation of the National Security Act, violation of the antipublic law, and espionage.

B. On November 1, 1973, the above court sentenced the judgment of the retrial of this case that the defendant A and the deceased E shall be punished by imprisonment of five years, suspension of qualifications of five years, defendant B, C, and D, suspension of qualifications of two years and six months, suspension of qualifications of two years and six months, suspension of qualifications of two years and one year, suspension of execution of one year, suspension of qualifications of three years, and suspension of qualifications of one year.

C. The Prosecutor and the Defendant A, B, C, D, and network E appealed appealed on the instant judgment on the review, but the Seoul High Court dismissed all the appeals filed by the Prosecutor and the Defendant A, B, C, D, and network E on February 22, 1974 (Seoul High Court 73No1654). Accordingly, Defendant B, C, D, and network E appealed, but the Supreme Court dismissed the final appeal on June 11, 1974 (Supreme Court 74Do106). Ultimately, the instant judgment subject to review became final and conclusive.

D. Defendant A, B, C, D, and F filed a request for a retrial on December 23, 2013; Defendant E’s spouse G; and Defendant H filed a request for a retrial on May 26, 2014 (around December 23, 2013, the filing of the instant request for retrial was completed on the same day as the date of death on March 24, 2014, which was before the decision on the request for retrial was rendered). On February 29, 2016, the lower court determined that there was a ground for retrial under Article 420 subparag. 7 and Article 422 of the Criminal Procedure Act in the instant judgment subject to retrial, and the Seoul High Court dismissed the immediate appeal on December 26, 2016 (Seoul High Court Decision 2016Da34716, Jul. 27, 2016).

3. Defendants and Appellants’ assertion

The facts charged that found guilty in the judgment subject to a retrial of this case are as follows: (a) the first university draft case after October 17, 1972, and the first university draft case after the conviction, which was organized by the Ministry of Information and Communication and the Ministry of Information and Communication. The investigators belonging to the Ministry of Information and Communication and the National Assembly members belonging to the Ministry of Information and Communication were unlawfully arrested and detained the Defendants in the course of investigating the instant judgment subject to a retrial; (b) the Defendants committed assault and cruel act against the Defendants; and (c) the Defendants’ interview with their family and counsel by November 1, 1973 sentenced to the judgment of the first instance court after the illegal arrest of the Defendants. The Defendants’ statements in such a situation are illegally collected evidence, and cannot be admitted as evidence for lack of evidence to acknowledge the facts charged. Accordingly, the facts charged of this case are not proven, and thus the Defendants should be acquitted.

4. Determination on the admissibility of the evidence offered by the prosecutor

A. Relevant legal principles

Article 438(1) of the Criminal Procedure Act provides that a court shall render a new trial on a case for which the ruling to commence a retrial has become final and conclusive (Article 438(1) of the Criminal Procedure Act). In a new trial proceeding on a final and conclusive judgment of the first instance court, the court shall not use the evidence of the previous litigation proceedings as it is, and may use it as evidence to acknowledge facts constituting a crime only when the whole process of the examination of evidence, such as application for examination of evidence, statement of the parties, decision on evidence, and execution of evidence, is recognized after the whole process of the examination of evidence, and the legitimate examination of evidence has been completed (see

B. Evidence relationship of the instant case

In the trial proceedings of this case, the prosecutor examined the suspect's interrogation protocol and written statement against the Defendants against the Defendants; ② Each prosecutor's interrogation protocol and written statement against the Defendants; ③ M, N,O, P, Q, R, S, T, U, and N; ④ M, N, P, P, Q, Q, R, T, U, and written statement of the prosecutor's interrogation protocol and written statement of the prosecutor's office against M; ⑤ V, W, X, X, X, Y, Z; and each prosecutor's protocol, written by AA, written by the police, written by the prosecutor's office, X, W, AB, AB, Y; and written statement prepared by the prosecutor's office against the Defendants; and ③ the prosecutor's interrogation protocol and written statement by the prosecutor's office against the Defendants; and ④ the prosecutor's interrogation protocol and written statement by the prosecutor's office against the Defendants; and ④ the prosecutor's interrogation protocol and written statement by the prosecutor's office against D (Evidence No. 67); the contents of evidence list; evidence inspection protocol of each case No.

C. Determination on admissibility

1) In full view of the following facts acknowledged by the evidence duly adopted and investigated by the court, it is reasonable to view that the Defendants made a confession of the facts charged of this case in the state of Voluntary hearing without prohibiting an interview with the defense counsel in the circumstances of unlawful detention. Each police interrogation protocol and written statement against the Defendants stated such confession are illegally collected evidence and arbitrariness, and the contents thereof cannot be acknowledged. Moreover, the Defendants denied their contents in this court, and thus, are inadmissible.

A) Defendant A was investigated at the latest around April 30, 1973, around April 24, 1973, around April 24, 1973, around April 28, 1973, around April 28, 1973, around April 24, 1973, around April 24, 1973, Defendant D’s network E, around April 30, 1973, and around April 24, 1973, by forceing the Defendant F to the large public room or the central information department at will without a warrant, and on May 5, 1973, by the time when the warrant for detention of the Defendants was issued, at the short time until the contact with the outside is interrupted for 11 days.

B) Under the aforementioned illegal confinement, Defendant A prepared a written statement on April 30, 1973 and May 1, 1973; Defendant B prepared on May 4, 1973; Defendant F prepared on April 24, 1973 each of the written statements with respect to Defendant D, and the police interrogation protocol (one-time statement) stating the intent to confession the instant facts charged on May 4, 1973 was prepared [the first written statement (No. 55 of the evidence list) prepared by Defendant C was stated as “the date of preparation, May 13, 1973”; however, in light of the form of the written statement, etc., it cannot be ruled out that the date of preparation of the written statement was originally prior to that date, but it was altered as “ May 13, 1973”

C) On May 5, 1973, prior to the issuance of a warrant of detention against the Defendants, each police interrogation protocol (one time) stating the purport of the confession of the facts charged in the instant case was prepared on May 4, 1973. Defendant C’s initial written statement was prepared on May 13, 1973 (Evidence No. 55) and was prepared on May 8, 1973 (Evidence No. 22) after the issuance of the warrant of detention (Evidence No. 52), but it appears that Defendant C and the Network E were in the state of hearing without voluntariness due to the aforementioned illegal detention, and it cannot be deemed that the above written statement and the police interrogation protocol was prepared after the full elimination of such circumstances.

D) Furthermore, Defendant C In the process of the investigation, the advisory and cruel acts were conducted from the investigators belonging to the Central Information Department, such as tata, water adviser, and salves, and resulting in suffering from aftermathing the bones of dynasium, so far. At the same time, Defendant A, B, D, network E, and F, who had been involved in the same investigation agency due to the same suspicion, are presumed to have been subject to advisory and cruel acts from the investigators, such as Defendant C, in the course of the investigation.

E) In the process of the investigation by the Seoul Special Metropolitan City Security Office and the Central Information Department, not only family members but also defense attorneys were prohibited from meeting with their defense counsel. The Defendants could not be seen as any family members or defense counsel.

2) Each prosecutor's interrogation protocol and written statement against the Defendants

In a case where the defendant made a confession that is not voluntary due to harsh acts, such as adviser, at an investigative agency before the prosecutor, and thereafter made a confession of the same contents even at the investigation stage of the prosecutor, even though the prosecutor had not forced the confession, such as adviser, at the investigation stage, even though the confession before the prosecutor had not been conducted (see Supreme Court Decision 92Do2409, Nov. 24, 1992). If there is a dispute over such voluntartariness, the prosecutor must prove that the confession before the prosecutor has removed the question about the voluntariness, and if the prosecutor fails to prove the removal of the question about the voluntariness, the statement evidence is inadmissible (see Supreme Court Decision 2004Do7900, Nov. 23, 2006).

According to the evidence duly adopted and investigated by this court, the Defendants were sent to the prosecution on May 24, 1973. The Defendants were also allowed to meet with their family and counsel at the prosecution investigation stage, and the Defendants were allowed to make a confession made at the prosecution on the trial date of the case subject to review as the confession made by another person, not by a person, but by another person. Even if the Defendants were not subject to harsh acts such as adviser before the prosecutor after the transmission to the prosecution, in light of the background leading up to illegal arrest and detention, the background leading up to the illegal arrest and detention, the investigation method of the investigators belonging to the Seoul Special Metropolitan City Gyeong-gu Seoul Special Metropolitan City Gyeong-si Gyeong-si Gyeong-si Gyeongn and the Central Information Department, the existence of harsh acts against the Defendants, and the degree thereof, there is no sufficient reason to suspect that the Defendants made a statement to the same effect that they made a confession in the same state of voluntariness even at the time of the prosecutor's investigation, and there is no other evidence to resolve such voluntariness.

Therefore, each prosecutor's interrogation protocol and written statement against the Defendants are inadmissible.

3) Each police interrogation protocol and written statement on M, N,O, P, Q, R, S, T, U, and N are admissible as evidence with respect to each of the above evidentiary documents, since the Defendants and the defense counsel consented (in the case of the defendant who is a criminal defendant, Article 312(3) and (5) of the Criminal Procedure Act) or consented to the admissibility of evidence, and the person making the original statement appeared as a witness in this court and did not recognize the authenticity thereof (Article 312(4) and (5) of the Criminal Procedure Act in the case of the defendant who is not a criminal defendant), each of the above evidentiary documents are inadmissible.

4) Each prosecutor's protocol of interrogation of M, N,O, P, Q, R, S, T, U, and N, and prosecutor's protocol of interrogation of M (Evidence No. 113)

Article 312(4) and (5) of the Criminal Procedure Act provides that the Defendants and the defense counsel consented to each of the above evidentiary documents as evidence after the decision to commence a retrial, and the person making the original statement was present in this court and did not recognize the authenticity thereof (Article 312(4) and (5) of the Criminal Procedure Act).

5) Each of the above documentary evidence written by the Defendants and the defense counsel against the above written statements prepared by the Prosecutor General, X, W, X, X, Y, Z, and AA in the police station, and each of the written statements prepared by the Prosecutor General, X, X, AB, AB, and Y in the prosecution. Since the person making the original statement appeared as a witness in this court and did not recognize the authenticity thereof, each of the above documentary evidence is inadmissible (Article 312(4), (5) of the Criminal Procedure Act).

6) A document stating N on May 10, 1973, N’s official seal (Evidence List Nos. 20, 67), D’s official seal search (Evidence List Nos. 68), and D’s official seal (Evidence List Nos. 68) is a document that describes N’s official seal in the Central Information Department on May 10, 1973. D’s official seal search (Evidence No. 67) is a document that describes D’s official seal reading from the Central Information Board on May 8, 1973, and D’s official seal (Evidence No. 68) is an abstract of D’s official seal keeping (Evidence List No. 189) from the Central Information Board on May 8, 1973. Each of the above evidentiary documents constitutes a document that is written by a defendant or a person who is not the defendant in the investigation process (Evidence No. 312(5) of the Criminal Procedure Act).

After the decision to commence a retrial was rendered, the Defendants and their defense counsel (Evidence Nos. 20) made ① as evidence to the effect that the contents thereof are denied, and (3) and (5) of Article 312 of the Criminal Procedure Act (Article 312(3) of the Criminal Procedure Act), or (2) as evidence, the Defendants and their defense counsel consented to the admissibility of evidence; and (4) the person making the original statement appeared as a witness in this court and did not recognize the authenticity thereof (Article 312(4) and (5) of the Criminal Procedure Act in the case of Defendants A, B, C, D, and F, who are not public offenders, are inadmissible.

After the decision to commence a new trial, the Defendants and their defense counsel denied the contents of D Bookbook (Evidence 67), D Bookbook Nos. 68 (Evidence List Nos. 68), and ① (In the case of Defendant D, Article 312(3) and (5) of the Criminal Procedure Act), and ② have consented (in the case of Defendant A, B, and C, Article 312(3) and (5) of the Criminal Procedure Act), or consented to the admissibility of evidence to the effect that the contents thereof are denied, or (in the case of Defendant A, B, and C, Article 312(3) and (5) of the Criminal Procedure Act, the original person was present in this court as a witness and did not recognize the authenticity thereof (Article 312(4) and (5) of the Criminal Procedure Act), and all of the aforementioned D Book Nos. 312(4) and (5) of the Criminal Procedure Act, and D Book Nos. 199

7) As to the seized articles, each protocol of seizure, each actual condition investigation, verification protocol (Evidence List No. 95), first of all, the seized articles, each protocol of seizure, and each fact-finding protocol, the Defendants and their defense counsel consented to the seizure as evidence after the decision to review was made, and there is no other reason to deny the admissibility of evidence, the admissibility of evidence is recognized.

However, with respect to the protocol of verification (Evidence Nos. 95), since the Defendants and defense counsel consented to the protocol of verification as evidence after the decision to commence a new trial, and the preparing person appeared in this court as a witness and did not recognize the authenticity thereof (Article 312(6) of the Criminal Procedure Act), the said protocol of verification is inadmissible.

8) The Defendants and their defense counsel consented to each of the documentary evidence above, including the case subject to review, its appellate trial, each protocol of final appeal, each protocol of examination of witnesses, and each protocol of examination of witnesses, as evidence after the decision of commencing a new trial. However, these documents are written in the proceedings being presided by the court, and the circumstantial guarantee of credit is strong, and admissibility of evidence is naturally acknowledged in accordance with Article 315

D. Sub-determination

Therefore, among the evidence requested by the prosecutor, the admissibility of evidence is recognized is the case subject to review, the appellate court, the trial records of each court of final appeal, the trial records of each witness examination, the seizure records, each seizure records, and the fact-finding records, and all other evidence are inadmissible

5. Determination as to whether to recognize the facts charged of this case

A. Criteria for determination

The issue of whether the facts charged in this case are admitted shall be determined based on whether the remaining evidence, excluding the evidence that the prosecutor applied for review, i.e., the case subject to review and its appellate court, each protocol of trial by the court of final appeal, each protocol of witness examination, each protocol of seizure, each protocol of seizure, and each protocol of fact-finding, can be proven beyond reasonable doubt.

B. In full view of the following facts acknowledged by the evidence duly adopted and examined by the court, the case subject to review and its appellate court, each protocol of trial of the court of final appeal, each protocol of examination of witness, each protocol of seizure, each protocol of seizure, each protocol of seizure, and each protocol of fact-finding are not evidence directly proving the facts charged in the instant case, but evidence to support the confession of the Defendants, or evidence to support the confession of the Defendants. For the aforementioned reasons, unless the aforementioned evidence alone is insufficient to acknowledge the facts charged in the instant case, and there is no other evidence to prove otherwise.

1) The Defendants consistently stated that the confession made at the prosecutor’s office on each trial date of the case subject to review is false and arbitrary, not a confession made by another person. In addition, the Defendants (excluding the Defendants’ Network E) stated on the trial date of the case subject to review the Defendants’ experience, relation to the Defendants, nature and circumstance of dissolution as a scientific research organization AC, and the date and time and place where the Defendants met, and denied the organization of L which was prosecuted as an anti-government organization, its activities as a member, conspiracy of insurrection, and conspiracy of insurrection.

2) Defendant deceased E also stated, on the trial date of the case subject to review, that the content of the talked with R, T, etc., the time and place of interview with the other Defendants, R, T, etc., the relationship with the other Defendants, and the remaining Defendants, and the date and place of interview with the other Defendants, etc. constitute the K political party indicted as an anti-government organization, and did not have been engaged in the guidance duty as a member, and that Defendant B, etc. did not instigate for insurrection by stating that “the socialist state was constructed” to Defendant B, etc. at AD coal mine, DIAE research institute, and its home office.

3) The protocol of examination of the witness against T is that "T does not constitute the K political party which is an anti-government organization with R, S, Defendant Network E, etc. on January 1, 1967, and that it did not order the network E to include a man-government organization." In addition, "S does not constitute the K political party which is an anti-government organization by gathering with N, R, Defendant Network E, etc. on January 1, 1967, and it does not constitute an anti-government organization with respect to the defendant network E.

4) As to the Kpolitical case against R, S, AG, AH, AI, etc. (related to Article 1-1 of the facts charged in the instant case), the “The Korean History Settlement Commission for the Truth and Reconciliation” case was fabricated by the Central Information Board. During the investigation, the Central Information Board determined that the case was committed by illegally detained R, etc. for 3 to 53 days, including R, etc., and received a false confession with adviser and cruel act.”

5) After that, S, AG, AH, and AI filed a petition for a new trial with the Seoul High Court on the K Party case (related to paragraph (1) of Article 1 of the facts charged in this case) (Seoul High Court 2009Reno76). On January 14, 2011, the above court rendered a judgment of not guilty of the facts charged against S, etc. on the grounds that the confession by S, etc. was inadmissible as a confession that is not voluntary due to illegal confinement, adviser, and harsh act, and the remainder of the evidence alone is insufficient to recognize the facts charged. The Prosecutor appealed, however, Supreme Court Decision 201Do1434 Decided May 16, 2014, which dismissed the appeal, and thus became final and conclusive not guilty of all the facts charged against S, etc. related to the K Party.

6) A’A’s examination protocol on AB was known only to the academic community with the latter part of AC, and it was silently asked to question how the Defendant’s network E first became a public interest-oriented machine and a new socialist state construction.” The witness examination protocol on AB is the content that “AB was unaware that L was an organization organized to create a socialist state,” and that it also leads to the extension of each person’s contribution duty for L’s activities.

7) The record of the examination of the Y was that Defendant A was unable to hear that Defendant A was herJ stories at the end of the mid-term Y on November 1, 1972, and it was aware that there was a strong order that Defendant A was causing a public stude in L, and that the written statement prepared by the prosecution was only the same as that prepared by other people. The record of the examination of the Z was insufficient to hear that Defendant F was admitted to L, and that Defendant C was not a student of the DI University.

8) The protocol of examination of the witness to AK and AL is merely a protocol of examination of the witness filed by the counsel of the co-defendant M in the case subject to review for M, and the protocol of examination of the witness to AM is merely a protocol of examination of the witness filed by the counsel of Q who is the co-defendant in the case subject to review for Q. Moreover, there is no doubt that the protocol of examination of the witness to NN, the defendant B, C, and D constituted the non-government organization L within the DI university.

9) The search and seizure records and each of the search and seizure records merely constitute search and seizure of the Defendants, M, N,O, P, Q’s house, and books operated by AP, or seizure of the seized articles by voluntarily produced materials from them. In addition, even after the fact-finding, each of the search and seizure records are merely pictures or pictures of places where the Defendants and the Defendants were involved in the search and seizure of the seized articles, the place where the said articles were copied as stated in the facts charged in the instant case, the place where the underground newspapers were printed,

6. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act. In addition, the Defendants, who were young shots who thought and discussed the future of the nation in the era of rule of authoritativeism, and have improved the history of boom, have been living in the context of causing serious pain to the criminal who constituted an anti-government organization and conspired and instigated insurrection by exercising illegal and unjust public power, and have been living well in the context of suffering from and suffering from the serious pain. Among the Defendants, there is a person who has made a different lusence while containing the same on their chest. As such, the Defendants sought a lusence against the negligence committed by the State, and then publicly announced the summary of this judgment pursuant to Article 440 of the Criminal Procedure Act and Article 58(2) of

Judges

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han

Support for judges' organization

Attached Form

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