The accused shall notify publicly the summary of the judgment of innocence.

On November 18, 1983, a public prosecution was instituted against the defendant on the violation of the National Security Act (Spyp). On February 29, 1984, the Seoul Criminal Court convicted all the charges and sentenced the defendant to life imprisonment. The Seoul Criminal Court appealed against this judgment and appealed to this court (No. 84890). On June 27, 1984, the court rejected the defendant's assertion of mistake of facts or misapprehension of legal principles, but reversed the judgment of the court below ex officio and sentenced the defendant to life again (hereinafter referred to as "the judgment on retrial"). The defendant appealed to the Supreme Court (84Do1763) on November 13, 1984. However, the Supreme Court dismissed the defendant's appeal on November 13, 1984.

In this regard, the Defendant filed a petition for retrial with this Court 2015No194 on August 31, 2016. Accordingly, this Court rendered a decision of commencing a retrial on August 31, 2016, and the Prosecutor appealed against this decision and filed an immediate appeal with the Supreme Court (2016Mo2735). However, the Supreme Court dismissed an immediate appeal on January 5, 2017.

On the other hand, the record of the judgment subject to a retrial was already destroyed, and it seems impossible to restore it even after the efforts are fully made. As long as complete recovery of records is impossible, the propriety of the judgment of the court of first instance, which is the original judgment, should be newly determined by comprehensively assessing the value of the evidence newly submitted in the retrial proceedings by comprehensively assessing the value of the evidence and the newly submitted evidence in the original judgment, which can be known by the remaining materials collected, including the written judgment, in the event that it is impossible to restore records (see Supreme Court Decision 2004Do2154, Sept. 24, 2004). Therefore, the evidence

2. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

After entering or departing from the Republic of Korea, the Defendant only reported the contents of Articles 4, 6, 11, 14, 17, 23, 26, and 31 of the facts constituting a crime as indicated in the judgment below in the process of entering or departing from the fence of the Republic of Korea, recognizing that North Korea’s propaganda was false, and does not constitute detection for reporting to D. The Defendant was found to have no intention to perform the objective, which is a subjective element for establishment of a espionage, and the detected content is widely known to all citizens in daily life, and thus cannot be deemed as national secrets. The lower court found the Defendant guilty of all the facts constituting a espionage. In so doing, it erred by misapprehending the legal doctrine on a espionage, or by misapprehending the legal doctrine on a espionage, thereby affecting the conclusion of the judgment.

B. The assertion of unfair sentencing

The imprisonment with prison labor of the court below is too unreasonable.

3. Destruction ex officio due to changes in indictment;

In the appellate trial, the prosecutor filed an application for changes in indictment with the same content as the attached Form 16 of the facts charged, and this court permitted it. Since the subject of the judgment of this court was changed, the judgment of the court below cannot be maintained any more.

However, despite the reasons for ex officio reversal, the defendant's assertion of mistake or misapprehension of legal principles is still subject to the judgment of this court, which will be examined below.

4. Judgment on misconception of facts or misapprehension of legal principles

A. Summary of the guilty evidence of the judgment below

The summary of the conviction evidence of the lower court as to the facts charged in the instant case is ① the Defendant’s testimony at the lower court, ② each interrogation protocol of the Defendant or E prepared by a prosecutor or a senior judicial police officer, ③ the F, G, H, I, J, K, L, M, N, N, andO prepared by a senior judicial police officer, ④ each investigation report prepared by a senior judicial police officer, ⑤ one copy of the passport number book (No. 1) and one copy of the passport (No. 2), ⑤ a copy of the interview of immigration facts prepared by the Minister of Justice.

B. Existence of admissibility of the evidence related to Defendant or E’s testimony

1) Defendant’s assertion

Defendant and E were forced to proceed to an investigator belonging to the National Defense Security Headquarters (hereinafter referred to as “security investigator”), and made a statement at the request of a security investigator by a security investigator without a warrant of detention, by failing to make various intimidation and coercions, while being illegally detained without a warrant of detention. After that, the Defendant made a false confession as his/her state of intimidation and coercion continues at the prosecution and the court of original instance. Accordingly, all of the Defendant’s written testimony at the court below and the protocol of interrogation prepared by a public prosecutor or judicial police officer for the Defendant and E are inadmissible.

2) Relevant legal principles

The purport of denying the admissibility of evidence of a false statement is to prevent not only the statement itself, which was made under a dangerous condition that may cause or coerce a false statement, from being inconsistent with the substantive truth, but also to prevent in advance any unlawful and unreasonable pressure that infringes on the fundamental human rights of a person who makes a statement by leaving the truth, and thus, if there is a dispute over its voluntariness, the defendant does not prove any reasonable and detailed facts to suspect voluntartariness, and the prosecutor must prove the removal of the question of voluntartariness, and if the prosecutor fails to prove that the question of voluntariness is eliminated, the evidence of the statement shall be denied (see, e.g., Supreme Court Decision 2004Do517, Jan. 26, 2006).

On the other hand, if the defendant denies the voluntariness of the defendant's statement entered in the suspect interrogation protocol and the defendant's statement on the trial date and it is argued that it is false confession, the court shall judge the defendant's educational background, career, occupation, social status, intelligence level, contents of the suspect interrogation protocol, and whether the defendant's statement was made voluntarily by free judgment in consideration of all the circumstances such as the defendant's academic background, career, occupation, social status, intelligence degree, contents of the suspect interrogation protocol, and the form of the protocol (see, e.g.

In addition, even if the Defendant was forced to make a confession before the public prosecutor, even if there was no forced confession, but at the time of the investigation by an investigative agency other than the public prosecutor, the Defendant made a false confession with an adviser at the time of the investigation, and the status of the hearing without arbitracy continues to be conducted before the public prosecutor’s investigation stage (see, e.g., Supreme Court Decision 92Do2409, Nov. 24, 1992). In addition, if the Defendant made a confession without arbitracy due to harsh treatment at the investigative agency, and if the Defendant continued to make a confession with the same psychological condition in the subsequent court, then the confession in the court shall be deemed to be a confession without arbitracy (see, e.g., Supreme Court Decisions 2002Do469, Jul. 8, 2004; 2009Do1603, Oct. 27, 2011).

3) Facts found based on the evidence adopted by this Court

On July 9, 1983, the security investigator made a false statement that "E was forced to go to the North Korea on the charge of violating the National Security Act, and detained him for four (4) days in custody, and she was compelled to go to go to the body of his body, and threatened his family members as if he would be detrimental to his family." The security investigator made a false statement that "E was included in the defendant in the park in Marabe and Ha was sexually driving to North Korea." On the basis of the above statement made by E, the security investigator investigated the defendant entering Japan at the international public port in Kim Jong-hae International Airport around August 14:20, 1983, and the defendant entering Japan as a charge of violating the National Security Act.

The Defendant issued a detention warrant on September 28, 1983, which was 13 months after the enforcement of the foregoing compulsory act, and had been detained for about 50 days until the enforcement of the detention warrant on October 6, 1983. The security investigator forced the Defendant to prepare a statement that recognizes the charge of violating the former public law and the National Security Act, and made intimidation during that process, such as “to show a sense of the Defendant’s ability to comply with the physical adviser or a professional engineer who provides electrical adviser, and to leave the sea on the aircraft”

After the completion of the security investigation, P, the investigator of the security company forced the defendant to make a false confession by stating that “if the defendant is a father, it shall be sentenced to death penalty or within three years if the defendant is a Si/Gun/Gu.” Even after the transfer by the prosecutor of the prosecution, the investigator of the security company forced the defendant in the detention house to find the defendant and E in the detention house and make the defendant make a statement at one time at the security officer. The prosecutor in charge of the investigation of the defendant made intimidation to the defendant by stating that “I will forward once again. I will be misunderstanding how you will be what you will be.” The defendant made a false statement at the prosecution stage, as he was investigated by the security officer, without disclosing that the confession made a false statement.

The Defendant had difficulties in communicating in Korean language due to the lack of common knowledge to receive education in Korean language. Nevertheless, the trial was conducted in Korean without interpretation. The Defendant, without having understood the prosecutor’s inquiry, responded to “e.g., courtesy,” and acknowledged the facts charged as it was by the security investigator. Furthermore, the lower court’s court’s decision that the security investigator reported the Defendant to keep the trial process against the Defendant, thereby continuing to duplicating pressure that the Defendant had to make a statement according to the investigation conducted by the security investigator.

4) Determination as to whether the evidence related to Defendant’s statement exists or not

First, the admissibility of each protocol of interrogation prepared by a judicial police officer against a defendant or E is examined. It is reasonable to view that the defendant and E were led to a security officer investigator, and subsequently led to an act of adviser and cruel treatment, etc., or made a confession of facts charged or a statement corresponding thereto in the state of illegal detention without a warrant. Therefore, each protocol of interrogation prepared by a judicial police officer against a defendant or E is inadmissible as there is no Voluntary nature of the statement.

Next, this paper examined the admissibility of the suspect examination protocol prepared by the defendant or E by the prosecutor. Even if the defendant and E did not undergo harsh acts, such as adviser, before the prosecutor, after transfer to the prosecutor, the defendant and E appear to have led the security company investigator or the prosecutor to the security company again if they reverse their statements made at the security company, and thus, they cannot be admissible as there is sufficient reason to suspect that the state without voluntariness in the security company continues at the prosecutor's stage, and there is no proof of the prosecutor to resolve the doubts about voluntariness (in the case of the defendant, the defendant and E are subject to intimidation at the prosecutor's investigation stage). Accordingly, even if each suspect interrogation prepared by the prosecutor about the defendant and E, it is inadmissible as there is no voluntariness of the statement.

Finally, I would like to examine the admissibility of evidence of the defendant's testimony in the original trial. The defendant had sufficient reasons to suspect that even at the time of making a statement in the original trial court, there was a prolonged illegal confinement, intimidation, or coercion, etc., and the evidence submitted by the prosecutor alone alone is not sufficient to resolve doubts about the voluntariness. Therefore, the defendant's statement in the original trial is inadmissible.

C. Existence of admissibility of the statement prepared by the judicial police officer

1) Relevant statutes

Article 2 (1) 1 of the former Military Court Act (wholly amended by Act No. 3993, Dec. 4, 1987; hereinafter the same) provides that a military court meeting shall have jurisdiction over "persons provided for in Article 1 (1) through (4) of the Military Criminal Act" and Article 1 (4) of the former Military Criminal Act (wholly amended by Act No. 3696, Dec. 31, 1983; hereinafter the same shall apply) provides that Article 13 (3) of the former Military Criminal Act (wholly amended by Act No. 3696, Dec. 4, 1987; hereinafter the same shall apply) shall apply to persons inside and outside of the Republic of Korea who have committed crimes, etc. under Article 13 (3) of the former Military Criminal Act.

Meanwhile, Article 1 of the former Armed Forces Security Ordinance (wholly amended by Presidential Decree No. 14258, May 13, 1994) provides that “The Armed Forces Security Unit shall be established under the Ministry of National Defense to take charge of matters concerning military security and intelligence, matters concerning the investigation of crimes under subparagraph 2 of Article 44 of the Military Court Act, and matters concerning the collection and disposal of intelligence related to the military and the military” (hereinafter referred to as “military security unit”), and Article 2 provides that “The security unit shall be composed of the headquarters of the Security Command (hereinafter referred to as the “COM”), the headquarters of the respective armed forces, the headquarters of the respective armed forces, the security support unit, and the security education.”

In addition, Article 43 (2) and Article 44 of the old Military Court Act stipulate the limitation of authority so that officers, warrant officers, and lower-ranking officers who belong to security units and engage in security duties can investigate only the cases under the jurisdiction of the military court as military judicial police officers.

2) Facts found based on the evidence adopted by this Court

On August 15, 1983, the security investigator forced the defendant to be detained and forced the loss of the security officer, and the whole investigation was conducted before the transfer of the prosecutor's office, including seizure, search and inspection, and summons of witnesses.In addition, at the bottom of the site for all statements by witnesses, the lower court stated that "1-4-9 Army Form 12, January 12, 1983" is "the land printing factory" at the right bottom, and the place of investigation is also stipulated as "the National Military Security Headquarters".

3) Each statement prepared by a judicial police officer against F, G, H, I, J, K, K, L, M, N, andO concerning the existence of admissibility of the evidence of the statement prepared by the judicial police officer, shall be admissible as evidence of illegal collection collected without due process, since it was actually prepared by a security officer investigator who has no investigative authority over the general public.

In addition, in light of the fact that its content appears to be as follows, it is difficult to prove the facts charged in this case to the extent that there is no reasonable doubt as to the facts charged in this case, since it is directly related to the facts charged, including the facts charged that the defendant was divingd or escaped to an area under the control of an anti-government organization, or that he was a espionage for the accomplishment of purpose as a member of an anti-government organization.

① The content of the Defendant’s statement on the Defendant’s mother-friendly F is mostly related to the Defendant’s growth process, and it is written that the Defendant joined the Korea Student Union at universities (hereinafter referred to as “Korea Student Union”) and participated in Quwon’s activities, etc. and made a trip to Europe or South Korea.

② The statement of the defendant's pro-friendly G contains the fact that the defendant was admitted to the Korean University at the time of college attendance and traveling to the European Union or South East Asia.

③ The Defendant’s statement on the Defendant’s wife South Korea H contains a statement that mainly states that the Defendant’s wife, in Japan, has explained that female students in the Korean Federation of Korea-Japan (hereinafter referred to as the “Korean Federation”) would be well-beingd.

④ The contents of the Defendant’s statement on the Defendant’s wife are most of the statements on life after marriage with the Defendant on May 22, 1981. In particular, the Defendant’s statement to the effect that “after the Defendant’s interview, the Defendant slanders the Republic of Korea, or listens to the fact that he embling the Republic of Korea, or embling North Korea, or engaging in a counter-espionage activity, is in accord with

⑤ Each statement statement made by J, K, L, and M is the purport that the Korean National University E was known in May 1980 when the Korean National University was enrolled and that the Korean National University E was divided in relation to college students, or that "E was considered to be a pure Korean Korean student."

(6) The main purpose of the protocol of statement on N, which operated R in Jeju-do, lies in the fact that E, while participating in the Jeju-do National Defense Organization, became aware of E and then dialogue on Jeju-do on E and several occasions.

The content of the I S's statement is that the S has introduced E through N, a high-speed line, and divided several dialogues.

D. The admissibility or probative value of other evidence

1) A criminal investigation report prepared by a judicial police officer, such as the existence of admissibility of a criminal investigation report prepared by a judicial police officer, is prepared by a security officer investigator who has no investigative authority over a defendant, and is inadmissible as evidence collected in violation of due process.

In addition, the contents of the report also about the opening time and permitted time of entry into the Jinhae Military Branch (the investigation report of October 12, 1983) and the statement that "I have been present to the labor party under U as a member of the T-General of the North Korean Labor Party (the investigation report of October 12, 1983)" would produce U's personal pictures related to the statement (the investigation report of October 12, 1983). The facts charged that the deceased escaped to an area under the control of an anti-government organization, or that the defendant escaped to the area under the control of an anti-government organization, or that it was not directly related to the facts charged in the instant case, including the facts charged that the defendant acted as a member of an anti-government organization for the accomplishment of its purpose.

2) As seized Aluminium electronic number book, one copy of a passport, and one copy of a passport, seized by a security officer investigator who has no investigative authority over the accused, the evidence is inadmissible as it constitutes unlawful collection evidence collected without due process.

In addition, the facts charged are not directly related to the facts charged in this case, including the facts charged that the defendant has escaped from an area under the control of an anti-government organization, under the order of an anti-government organization, or escape from the area under the control of an anti-government organization.

3) There is no direct connection with the facts charged that the defendant escaped from the territory of an anti-government organization or escaped to an area under the control of an anti-government organization, as a member of an anti-government organization, which was prepared by the Minister of Justice of the Ministry of Justice of the probative value of a copy of the interview upon entry into or departure from the Republic of Korea prepared by the Minister of Justice.

E. Sub-decision

The evidence presented in this case is not admissible or admissible, and it is hard to recognize that the facts charged are proved by evidence of probative value to the extent that there is no reasonable doubt about the whole facts charged of this case including the facts charged that the defendant escaped from "to receive or escape from an area under the control of an anti-government organization" or "for the accomplishment of its purpose as a member of an anti-government organization."

Nevertheless, the lower court fully recognized the admissibility of the evidence submitted by the prosecutor and found the Defendant guilty of all the charges of this case based on the evidence recorded in the summary of the evidence including the said evidence. Therefore, the lower court erred by misapprehending the legal doctrine on the misunderstanding of facts, or on the voluntariness, admissibility and probative value of confession, thereby adversely affecting

5. Conclusion

The appeal by the defendant is well-grounded, and the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts charged against the defendant is as shown in the separate sheet. However, as seen in the above paragraph (4) above, since it falls under a case where there is no proof of criminal facts, the defendant shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this decision shall be announced in accordance with Article 440 of the Criminal Procedure

Judges Jeong Jae-ok

Judges Lee Young-young

(c)"The records of the decision subject to a retrial, as described in the reasons for the judgment, have already been destroyed and currently possible efforts;

B It is impossible to restore the case even if it is not possible to restore it, and only the prosecutor who was involved in the public trial can not disclose the charged prosecutor.