[2] Whether a crime under Article 7 (5) of the National Security Act is an objective crime (affirmative), and the person who bears the burden of proving that there was "the purpose of the act of immigration" was "the act of immigration" (=the prosecutor) and the method of proof

1. As to the Prosecutor’s Grounds of Appeal

The finding of guilt in a criminal trial shall be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no such proof, even if there is no doubt of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006).

(1) The second instance court (Seoul Central District Court Decision 2014Kadan380) rendered a not-guilty verdict on the ground that it is difficult to recognize that the Defendant had an intention to transfer the instant computer to Nonindicted Party 1 at the time of delivering the instant computer to Nonindicted Party 1. (2) The lower court, on the grounds indicated in its reasoning, found the first instance judgment reasonable, and rejected the grounds for appeal as to the mistake of facts by the prosecutor.

The allegation in the grounds of appeal is the purport of disputing such fact-finding by the lower court, and is merely a dispute over the lower court’s determination on the selection and probative value of evidence belonging to the free judgment of the fact-finding court. In addition, even after examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical

On the other hand, the prosecutor appealed against the guilty portion of the judgment of the court below, but does not state the grounds for objection to this part in the petition of appeal and appellate brief.

2. As to the Defendant’s ground of appeal

A. To be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the existence and security of the nation, which is the legal interest protected under the National Security Act, and the democratic fundamental order. Whether the expressive materials have the same nature should be determined not only by the overall contents of the expressive materials, but also by taking into account all the circumstances, such as the motive for the production thereof, the form of the expressive act itself and its external contents, and the situation

The crime of Article 7(5) of the National Security Act is the production, importation, reproduction, possession, transportation, distribution, sale, or acquisition of documents, paintings, or other expressive materials for the purpose of committing a pro-enemy act as prescribed in paragraphs (1), 3, and (4) of the same Article, and is obviously a so-called pro-enemy crime. The purpose of the crime is to establish a crime, as an excessive subjective element other than the intent, separate from the intent. As such, even if an actor knowingly committed an act under paragraph (5) of the same Article, the element of pro-enemy act is not satisfied unless the intent of the act is recognized. Furthermore, the prosecutor bears the burden of proving the fact that an act constitutes the element of pro-enemy act in a criminal trial. The fact that an actor committed an act under paragraph (5) of the same Article solely based on the fact that he/she committed an act under paragraph (5) with the knowledge that he/she was an pro-enemy act, the prosecutor must prove that he/she committed an pro-enemy act. In this case, in addition to various circumstances constituting a pro-enemy act, if there is no direct evidence.

In addition, criminal facts should be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

B. First, we examine the part on the violation of the National Security Act regarding “○○○○○○○○○○○○○○○○○○○○” book.

According to the reasoning of the first instance judgment (Seoul Central District Court Decision 2013Ma6748), and the reasoning of the lower judgment, the first instance court asserted that the Defendant’s act of violation of the National Security Act regarding “○○○○○○○○○○○○○○○○○○○○○” book among each of the facts in the Defendant’s judgment constitutes an attack against North Korea, citing the appearance of North Korea, the name of the National Defense Committee or North Korea’s press, and the contents of pro-North Korea’s personal interview or speech, etc., the expressive materials distributed by the Defendant using the Internet △△△△○○○○○○○○○○○○○, etc., and held in the form of document at the Defendant’s residence constituted an attack against North Korea’s long-distance development and launch and nuclear test as an independent symbol. In so doing, the lower court affirmed the lower court’s determination that the Defendant’s act constituted an attack against North Korea’s political order and free democracy system, and that it did not have any specific reasons for the aforementioned determination.

However, according to the records, “○○○○○○○○○○○○○” book was drafted by Nonindicted 3 on April 7, 1995, when the father, Nonindicted 2, who worked for an anti-government organization organized by North Korea’s order on January 1, 1993, was arrested in the process of praiseing the North Korean system, such as dissemination of the principal ideology, and was arrested on April 7, 1995 by the Seoul High Court, which committed a violation of the National Security Act, and was written by Nonindicted 3 during the period of suspended execution, and criticized North Korea’s educational environment and reality, while evaluating North Korea’s educational policy, it appears that it was one of the main contents that was to promote the friendship between the construction and launch of the 2012 Jinsung central government, which was established by North Korea’s order, and that the content of the “○○○○○○○○○○○○○○○○” book did not indicate that it did not indicate that the content of North Korea’s long-distance development and launch and launch test and its symbol as autonomy.

Therefore, the lower court’s judgment that found the “○○○○○○○○○○○○○○○○○○○” book based on the content that was not written in the book was determined as pro-enemy materials and found guilty of violating the National Security Act (praise, rubber, etc.), which erred by misapprehending the legal doctrine as to pro-enemy materials under Article 7(5) of the National Security Act, and by failing to exhaust all necessary deliberations as to whether the content of the book constitutes pro-enemy materials that threaten the nation’s existence and security and free democratic fundamental order, as it is active and aggressive to threaten the nation’s existence and security and democratic basic order, thereby adversely affecting the conclusion of the judgment. The part of the Defendant’s allegation in the grounds of appeal assigning this

C. We examine the remainder of the violation of the National Security Act (e.g., praise and rubber).

The first instance court (Seoul Central District Court Decision 2013Ma6748) found the Defendant guilty of the remaining violation of the National Security Act. (1) each expressive material in its holding constitutes pro-enemy pro-enemy materials, which are active and aggressive and aggressive against the nation’s existence and security and democratic fundamental order, and are beyond the bounds of the freedom of expression. The Defendant acquired, possessed, distributed, or distributed them for a pro-enemy purpose. (2) The comments posted on the e-mail or Internet camera stored in the Internet server constituted “other expressive material” under Article 7(5) of the National Security Act. The lower court, on the grounds indicated in its reasoning, recognized the first instance judgment as justifiable, rejected the Defendant’s grounds for appeal as to the misunderstanding of facts or misapprehension of legal principles.

The allegation in the grounds of appeal disputing the lower court’s fact-finding is nothing more than an error of the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, even when examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding pro-enemy contents under Article 7(5) of the National Security Act, the purpose of pro-enemy act, and “documents, pictures, or other representations” or by violating the principle of no punishment without law, thereby adversely affecting the conclusion of the judgment (see Supreme Court Decision 2013Do218

3. Scope of reversal

Of the guilty portion of the lower judgment, the part of the lower judgment against the National Security Act regarding the “○○○○○○○○○○○○” book should be reversed. However, the lower court upheld the first instance judgment that sentenced the remainder of the guilty portion and rendered a single sentence. As such, the part of the lower judgment on conviction among the lower judgment should be reversed.

4. Conclusion

Of the judgment of the court below, the guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Cho Jae-chul (Presiding Justice)