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

Around June 15, 1978, the Defendant was arrested to police officers belonging to the Clean Police Station and was arrested and detained in the above police station for committing a violation of public law. The arrest report was made on the 19th of the same month, and the arrest warrant against the Defendant was issued and executed on the 24th of the same month.

On July 7, 1978, the defendant was detained as the facts charged under Section 2-A below, and the court of original judgment sentenced the defendant to 10 months of imprisonment and suspension of qualifications for the defendant on September 6 of the same year.

As the defendant and the prosecutor appealed, the appellate court reversed the judgment of December 6, 1978 and sentenced the defendant to 10 months of imprisonment and suspension of qualification, and the above appellate judgment (hereinafter referred to as "the judgment subject to a retrial") became final and conclusive on March 13, 1979.

On May 7, 2020, the Defendant filed a motion for a retrial of this case. On September 9, 202, this court rendered a ruling of commencing a retrial on the ground that there was a disability where a police officer involved in an investigation could not obtain conviction even though he/she was proved to have committed an offense related to his/her duties, and that there was a ground for retrial under Article 420(7) of the Criminal Procedure Act, and the said ruling became final and conclusive.

2. Summary of facts charged and grounds for appeal

A. Summary of the facts charged

The summary of the indictment in the attached Form is as follows.

B. Summary of grounds for appeal

(1) Defendant (De facto mistake, misunderstanding of legal principles, and unreasonable sentencing)

The Defendant did not commit the same crime as the facts charged, and the lower court’s imprisonment (ten months of imprisonment and ten months of suspension of qualifications) is too unreasonable.

(2) Prosecutor (legal scenarios and unreasonable sentencing)

The court below erred by ordering the suspension of qualification for not more than one year in violation of Article 44(1) of the Criminal Act, and the above sentence of the court below is too uneasible.

3. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. The judgment of the court below

The court below found the defendant guilty of the above facts charged on the grounds of the evidence, including the defendant's statement and witness B's statement, witness C, D, E, and F's statement.

B. Judgment of the court below

The crime of Article 4 (1) of the former Anti-Public Act is established when an act of pro-government organization or a member thereof, or a member thereof, or an act of pro-government organization taking advantage of praise, rubber, assistance, or any other method. An act of pro-government organization is established according to Act No. 4373, May 31, 1991 corresponding to the above provision.

Unlike the provision of Article 7 (1) of the National Security Act, the requirement of " knowing that it may endanger the existence and security of the nation or democratic fundamental order" is not separately provided.

However, even if there is no express legal requirement under Article 4(1) of the former Anti-Public Act, since the above provision is unconstitutional, due to the diversity of the relevant legal text and the broadness of the scope of its application, the criminal punishment is to be expanded due to such unconstitutional elements, it is reasonable to interpret that the provision to be applied by reducing it only when it threatens the existence and security of the State or there is an obvious risk that may undermine the fundamental order of free democracy (see, e.g., Supreme Court Decisions 2010Do14754, Feb. 24, 201; 89Hun-Ga113, Apr. 2, 190).

In light of the above legal principles, comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below, it is difficult to deem that the evidence of the court below alone, which alone adopted in the judgment of the court, may pose a clear danger to the national existence and security or to harm free democratic fundamental order, and there

The Defendant was detained in custody of the police officer during the period from June 15, 1978 to 48 hours when he was arrested by the police officer, and thus, it is reasonable to deem that the Defendant was illegally detained until the 24th day of the same month when the warrant of detention was issued and executed. As such, the Defendant was detained in an investigative agency.

In addition, there is a circumstance to suspect the voluntariness of a statement made by the defendant, and in light of the fact that the defendant was tried while the defendant was detained continuously, the possibility that the defendant's statement made without resolving the state of voluntariness cannot be ruled out.

Furthermore, the statement of the witness B of the court below was not mentioned by the defendant against the ordinary North Korea, and the defendant returned the channel that the defendant sent to North Korea from the TV of another house, but did not go to the North Korea. The witness's statement also was that the witness's investigative agency was made after the witness returned the TV channel that he wanted to show a continuous gap by gathering the TV channel to the collection of the rice millet No. 1, and then the defendant made the same speech as the facts charged. Thus, it cannot be deemed that the defendant's statement that the defendant made such a speech would endanger the national security or undermine free democracy's basic order.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to Article 4 (1) of the former Anti-Public Law, which affected the conclusion of the judgment.

4. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

[Grounds for multi-use Judgment]

The facts charged of this case are as stated in 2-A. 2-c., as seen in 2-3. Thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced pursuant to Article 58(2) of the Criminal Act.

Judges Cho Jae-dae

Judge Fixed Number