[2] The elements of the crime of diving and escape under Article 6 of the National Security Act

[3] The requirements for the exclusion of the application of the National Security Act as it constitutes Article 3 of the Inter-Korean Exchange and Cooperation Act to the act of traveling between South and North Korea

[4] Requirements for establishing a crime of receiving money and valuables under Article 5 (2) of the National Security Act

[2] Whether the crime of diving is established when entering the Republic of Korea from an area under the control of an anti-government organization, and whether the purpose was to re-enter the country at the time of escape does not affect the establishment of the crime of diving and escape.

[3] In order to exclude the National Security Act as it falls under Article 3 of the Inter-Korean Exchange and Cooperation Act, the act of traveling between South and North Korea should first aim at inter-Korean exchange and cooperation.

[4] The crime of accepting money and valuables under Article 5 (2) of the National Security Act is not the purpose of accepting money and valuables from a member of an anti-government organization or from a person who received an order from such organization, but should receive money and valuables from a member of an anti-government organization or a person who received an order from such member, with the knowledge that such act may endanger the existence and security of the State or democratic fundamental order. Thus, in a case where the act of accepting money and valuables does not pose a risk of endangering the national existence and security or democratic basic order, it shall not be punished as a crime of accepting money

(1) As to the assertion of abuse of power to prosecute

Even though Articles 246 and 247 of the Criminal Procedure Act do not grant a prosecutor a arbitrary and unlimited prosecution right, a prosecutor may institute a public prosecution if it is deemed reasonable to impose criminal sanctions as the elements of a crime (see Supreme Court Decisions 90Do1613, Sept. 25, 1990; 92Do256, Apr. 24, 1992; 94Do2658, Feb. 13, 1996; 94Do2658, Feb. 13, 1996). In light of the reasoning of the prosecution in this case and the contents of the facts charged, and the facts recognized by the court below, etc., the prosecution in this case cannot be deemed to constitute an abuse of the prosecutor’s right to institute a public prosecution. The same purport of the judgment below is justifiable and without merit.

(2) As to the assertion that the facts charged were not specified

The facts charged should be stated clearly by specifying the date, time, place, and method of the crime (Article 254(4) of the Criminal Procedure Act). It can be identified and distinguished from other facts, i.e., the identity of the facts charged, and the degree of specification of the constituent elements of the crime (see Supreme Court Decisions 84Do1139, Aug. 14, 1984; 92Do1211, Aug. 14, 1992; 96Do197, May 31, 1996). However, even if part of the facts charged is somewhat unclear, if it can be specified by other stated matters, the validity of the indictment shall not be affected.

Examining the facts charged in the instant case, it appears that there was a specific specification of the facts charged under Article 254(4) of the Criminal Procedure Act. In the event of escape to receive an order from an anti-government organization or a member of it, it cannot be said that there was no specification of the facts charged on the ground that, in the event of escape to receive an order from an anti-government organization or a member of it, the content of the order was specific, the praise, encourage the activities of an anti-government organization or a member of it or a person who received its order, the meeting with a member of it or a person who received its order, and the receipt of money and valuables, the contents beneficial to the North Korean government organization, and the fact that, in the event of escape to receive an order from an anti-government organization or a member of it, it was impossible to conclude that there was no specification of the facts charged.

(3) As to diving and escape

Article 6 (2) of the National Security Act includes not only cases of receiving an order from an anti-government organization or a member thereof, but also cases of receiving an order again from a person subject to such order. In addition, the concept including an instruction and order does not necessarily have a control relationship with an order, but also does not have any restriction on the form of the order (see Supreme Court Decision 90Do1285 delivered on August 24, 1990). In addition, the issue of whether an entry into the Republic of Korea was established from an area under the control of an anti-government organization, and whether an entry into the Republic of Korea was made at the time of escape is not affected by the establishment of the crime of diving and escape (see Supreme Court Decision 84Do2323 delivered on January 22, 1985, 200Do32399 delivered on June 16, 1996).

According to the records, the fact-finding by the court below with respect to the defendants' diving and escape is just and there is no violation of the rules of evidence, and there is no violation of the rules of evidence, and the legal purpose of the court below is justified, and the facts acknowledged by the court below do not constitute a crime. If the defendants went to North Korea as the reasons stated in the judgment and entered Korea via the door point, the defendants escape to North Korea under his control in order to receive an order from the North Korean organization, which is an anti-government organization, and the escape from North Korea to North Korea under his control, and the escape from North Korea to the territory of the Republic of Korea. There is no reason

(4) As to the assembly, praise, and rubber

Examining the evidence adopted by the court of first instance by the court below in comparison with the records, it can be sufficiently recognized that the Defendants committed acts such as meeting, praise, and rubber, as stated in its reasoning, while knowing the fact that the Defendants may endanger the national existence and fundamental order of free democracy. In addition, even if the facts acknowledged by the court below are found to fall under praise, rubber, the outcome of the instant case does not affect the conclusion of the Defendants, even though the Defendants’ act was in opposition to North Korea’s partial policies, in full view of the following: (a) even if the Defendants’ act constitutes obscenity and rubber, the establishment of the instant crime is not affected if the Defendants’ act constitutes obscenity and rubber. The argument is without merit.

(5) As to the application of the Inter-Korea Exchange and Cooperation Act

Article 3 of the Inter-Korea Exchange and Cooperation Act provides that "this Act shall take precedence over other Acts to the extent that it is justified with respect to activities aimed at the inter-Korean exchange and cooperation, such as coming to and going to and going to and going to and from South and North Korea, trade, cooperative projects, and provision of telecommunications services." Thus, in order to exclude the National Security Act as it falls under the above provision, the activities of going to and going to and from South and North Korea should aim at the inter-Korean exchange and cooperation (see Supreme Court Decisions 92Do1211, Aug. 14, 1992; 92Do1815, Feb. 9, 1993).

However, in light of the employment evidence of the first instance judgment maintained by the court below and the facts of recognition thereof, the purpose between the Defendants cannot be deemed to be for inter-Korean exchange and cooperation under the above provision between North Korea, and there is no other data to recognize that there was such purpose. Thus, there is no room to apply the above provision to the Defendants without examining whether the Defendants’ act constitutes within the scope that is justified under the above provision. There is no reason to discuss.

2. We examine the Prosecutor’s grounds of appeal.

The crime of receiving money or goods under Article 5 (2) of the National Security Act is not the purpose of receiving money or goods from a member of an anti-government organization or a member of an anti-government organization (see, e.g., Supreme Court en banc Decision 85Do1367, Dec. 10, 1985; Supreme Court Decision 90Do646, Jun. 8, 1990; Supreme Court Decision 95Do1624, Sept. 26, 1995). Since the act of receiving money or goods must be received from a member of an anti-government organization or a member of a free democratic organization with the knowledge of the fact that it threatens to endanger the nation's existence, safety, or fundamental order, it cannot be punished as a crime of receiving money or goods if there is no danger that the act of receiving money or goods may endanger the nation's existence, safety, or democratic basic order, and there is no possibility that the defendants' act constitutes an unlawful act of maintaining the basic order in North Korea's judgment and its reasoning.

3. Therefore, all appeals by the Defendants and the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)