[2] Whether the decision to extend the communication-restricting measures can exceed the subject and scope of the original permission (negative)

[3] The meaning of the immigration aid under the National Security Act

[4] The case holding that the act of paying the money to help North Korean Koreans cannot be deemed as an act of assisting in the activities of anti-government organizations

[5] Admissibility of evidence of documents contained in computer diskettes

[6] Probative value of a video tape

[7] The method of proof where the defendant contests the voluntariness of a statement

[8] In a case where documents containing praises, rubbers, and concerts of anti-government organizations are stored and stored in a computer diskette, whether the crime of possessing pro-enemy materials is established regardless of whether the documents were deleted later (affirmative)

[2] The decision to extend the period of communication-restricting measures is merely an extension of the period of the original permission and does not exceed the subject and scope of the original permission. Therefore, in a case where the communication-restricting measures permitted by the permission for communication-restricting measures are only the "telecommunications wiretapping and mail censorship", it is not a legitimate ground for the recording of conversation even though the original permission was written in the written decision to extend the communication-restricting measures.

[3] Under the National Security Act, the term "defensive concert" refers to the act of responding to and joining in the activities of anti-government organizations or their members or those who were ordered to join the organization, by asserting the same contents as the activities of anti-government organizations or their members, or by committing an act consistent with it.

[4] The case holding that the act of paying the money to help North Korean Koreans in North Korea cannot be deemed as an act of assisting in the activities of anti-government organizations

[5] The hearsay rule shall apply to the authenticity of the contents of a document contained in a computer diskette in light of the fact that the document contained in the computer diskette is used as evidence only as a medium of the recording, and its substance does not differ significantly from the documents written in the statement of the defendant or a person other than the defendant, and that there is a possibility of manipulating in the process of keeping and printing after the seizure, and that the opportunity for cross-examination is not guaranteed. Accordingly, it may be used as evidence only when it is proved by the statement of the maker or the person who made the statement under Article 313(1) of the Criminal Procedure Act.

[6] Any person has a freedom not to be taken without permission, or such freedom is not unlimited from the exercise of state power, and is subject to considerable restriction if necessary for national security, maintenance of order, and public welfare. In investigating a crime, the fact that the investigation agency is currently committing a crime, and the necessity and urgency of preservation of evidence, and in a case where a photograph was taken by reasonable means generally acceptable, it cannot be readily concluded that the above photograph was conducted without a warrant and that it was unlawful.

[7] In a case where the defendant contests the voluntariness of a statement, the court may use it as evidence if it obtains a conviction as a result of an investigation conducted by a proper method, and it does not necessarily require the prosecutor to prove the voluntariness.

[8] If documents that praise, encourage, and aid the activities of anti-government organizations were stored and kept in a computer diskette, the crime of possession of pro-enemy materials by the custody of the above documents was established, and whether it is easy to recover the above documents after deletion, and whether it is possible to recover them actually, does not affect the nature of the crime of possession of pro-enemy materials.

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

A. As to the misapprehension of legal principles as to anti-government organizations under the National Security Act

In order to distinguish between an anti-government organization and a dual-government organization under the National Security Act, the purpose of which is to directly achieve through its activities is to directly carry out the name of the government or the state itself as a primary purpose. In a case where the organization directly and indirectly carries out the change itself, it constitutes an anti-government organization. It should be viewed that it constitutes an anti-government organization, and it constitutes a dual-government organization, in a case where it directly and indirectly carries out the activities of a separate anti-government organization on the premise that it exists as an anti-government organization (see Supreme Court Decision 94Do1020, September 6, 1996)

According to the reasoning of the judgment below, the court below found that it is difficult to view that the "Yannam Committee" directly and primarily aims to promote and disseminate the idea of North Korea, which is an anti-government organization, to form a new government, and otherwise make it difficult to regard it as the primary purpose to directly transfer the government by violent means and establish a new government. The court below acquitted all the facts charged around the composition of an anti-government organization, joining an anti-government organization, meetings with members of an anti-government organization, and communications. The above fact-finding and decision of the court below are correct, and there is no error of law by misunderstanding the legal principles of an anti-government organization, as otherwise alleged in the ground of appeal.

B. As to admissibility of recording tapes, etc.

The Protection of Communications Secrets Act provides that any person shall not, without recourse to this Act, the Criminal Procedure Act, or the Military Court Act, censorship of mail, wiretapping of telecommunications, or record or listen to conversations between others that are not open to the public (Articles 3 and 14(1) of the Protection of Communications Secrets Act). The Protection of Communications Secrets Act provides that any mail or its contents obtained through illegal censorship, the contents of telecommunications known or recorded by illegal wiretapping or obtained through illegal wiretapping, and the contents of unlawful recording and listening to conversations shall not be admitted as evidence in a trial or disciplinary procedure (Articles 4 and 14(2) of the same Act).

According to the reasoning of the judgment below, the court below determined that the above recording was the object of permission for communication-restricting measures issued by Busan District Court on April 30, 1996 and permission for communication-restricting measures issued on November 6, 1996. No. 48 of the above permission for communication-restricting measures is "non-party 1", and the type of communication-restricting measures is extended after the permission was granted on February 3, 1997, and there was no further period of time to limit communication-restricting measures as stated in the first written permission for communication-restricting measures as well as the first written permission for communication-restricting measures as "non-party 2" and the scope of "non-party 2" and "non-party 2, etc." were added to the first written permission for communication-restricting measures as well as the first written notification for extension of communication-restricting measures as "non-party 9" and the second written notification for extension of communication-restricting measures as "non-party 19.19.19.6."

In light of the records, the fact-finding and judgment of the court below are recognized as legitimate (in particular, recording of the ancillary facts of anti-government organization's praise, rubber, and concert is made after the expiration of the period of permission under Article 129. The prosecutor's decision to extend the above-mentioned No. 129 was made at the time of the extension decision under Article 48 of the above-mentioned communication-restricting measures permission. However, according to the records, it is evident that the above extension decision was made against the above No. 48), and there

In addition, the court below's decision that did not separately determine the legitimacy of admissibility of the recording tape and recording document concerning telephone wiretapping submitted as evidence of the main facts charged against the meeting between its members and communications on the premise that the "Ynam Committee" is an anti-government organization shall not affect the conclusion of the judgment unless it recognizes the identity of the "Yannam Committee" as an anti-government organization as seen earlier.

All arguments in this regard are without merit.

C. As to the misapprehension of legal principles as to the transfer of interest under the same Article

According to the National Security Act, the term "defensive assistance" means a response to and cooperation with the activities of an anti-government organization or a member of it or a person who received an order from it, by alleging the same contents as those of it, or engaging in any act consistent with it.

According to the reasoning of the judgment below, the court below found the defendants not guilty on the ground that the defendants' sexual funds paid to the U.S. and the U.S. government's 96 peaceful unification promotion headquarters and the U.S. National Campaign Center for the Helped Koreans in North Korea, which were recognized by the government through the U.S. and the U.S. Federation, were delivered to the North Korean Red Cross through the above organizations or the Korean Red Cross, and the defendants' act of paying sexual funds to assist North Korean people in North Korea was likely to be deemed to have engaged in the activities of the North Korean Industrial Association, which is an anti-government organization, and there is no other evidence to prove otherwise. The judgment of the court below is just and there is no error of law by misapprehending the value judgment of evidence or by misapprehending the legal principles,

2. We examine the grounds of appeal by the defense counsel and the Defendants (the grounds of appeal are examined separately by each of the Defendants).

A. The nature of the “Yannam Committee” as a dual organization

According to the records, the court below's finding that the above 'Ynam Committee' constituted a dual organization under the National Security Act after recognizing the purpose, route, system, lectures, organization, etc. of the 'Ynam Committee' based on its employment evidence is just and there is no error of law by misapprehending the legal principles as to the degree of proof of facts charged or by misapprehending the facts in violation of the rules of evidence (However, among the employment evidence, the documents contained in the computer diskettes seized from non-indicted 2 cannot be used as evidence as evidence, as seen below, as it is sufficient to recognize them by other evidence of the employment of the court below. However, the result of the judgment below is not affected)

B. Probative value of computer diskettes confiscated by Nonindicted 2

According to the reasoning of the judgment below, the court below held that the seizure of this case was lawful since the seizure procedure of computer diskettes seized by non-indicted 2 was conducted while emergency arrest of non-indicted 2, and the emergency arrest of non-indicted 2 satisfies all the substantive requirements and urgency of emergency arrest under Article 200-3 (1) of the Criminal Procedure Act. The above judgment of the court below is just and there is no violation of law such as misunderstanding of legal principles as to the seizure procedure, misunderstanding of facts, or omission of judgment.

The Defendants’ aforementioned method of seizure is illegal; however, even if it is desirable for the Defendants to take such method as alleged by the Defendants to avoid the risk of forgery, alteration, etc. in the seizure of computer diskettes, it is merely about the appropriateness of the method of seizure, and it cannot be said that the failure to take such measures is unlawful. Moreover, the Defendants’ assertion that the aforementioned computer diskettes was operated under the state of initial seizure cannot be accepted.

However, the hearsay rule applies to the authenticity of the contents in light of the fact that the documents contained in the computer diskettes are used as evidence only in the medium of the recording, and the actual contents do not differ from the documents written in the statement of the defendant or a person other than the defendant, and there is a possibility of manipulating in the process of keeping and printing after seizure, and the opportunity for cross-examination is not guaranteed. Accordingly, they may be used as evidence only when it is proved by the statement of the maker or the person who made the statement in accordance with Article 313(1) of the Criminal Procedure Act.

However, it was not proven by the author or the person who made a statement that the document contained in the above computer diskettes (the result of verification on the computer diskettes is merely the same as the content of the document recorded in the printed material, and it is still the content of the document stored in the computer diskettes) was not proven to be genuine.

Nevertheless, the court below's finding the admissibility of the documents contained in the above computer diskettes and finding them guilty as evidence against the defendants is illegal (However, in the case of possessing pro-enemy contents by storing and storing them in the computer diskettes, since the existence of documents containing pro-enemy contents, which are not the authenticity of the contents contained in the computer diskettes, is directly admitted as evidence, the admissibility of evidence of pro-enemy contents is recognized as long as they go through lawful verification procedures.)

C. Probative value of video tapes

Any person has a freedom not to be taken without permission, or such freedom is not unlimited from the exercise of state power, and is subject to considerable restriction if necessary for national security, maintenance of order, and public welfare. If an investigative agency currently commits a crime in the course of investigating a crime, the necessity of preservation of evidence and urgency are necessary, and a photograph has been taken in a reasonable manner generally acceptable, it cannot be readily concluded that the above photographing took place without a warrant and is unlawful.

According to the records, the video photographing of this case was conducted in a way necessary to preserve the evidence of the meeting when the suspicion of the crime against the defendants was considerably discovered, and the type of the defendants entering the office of Non-Indicted 2 through the fence outside the wall and the second floor outside the dwelling area of Non-Indicted 2 cannot be said to have been taken, and the method of photographing is also not necessarily lacking reasonableness. Under the above circumstances, the court below determined that the act of photographing of this case was not unlawful, and recognized the admissibility of evidence of the video tapes acquired thereby, is just and it cannot be said that there was an error of interpreting the admissibility of evidence of the video tapes obtained without the warrant (However, it is a separate issue whether the defendants can be found guilty (whether there is evidence or not) of the facts charged against the defendants).

D. As to Defendant 9

(1) Voluntaryness of the protocol of examination of practical examination of warrant

In a case where a defendant contests the voluntariness of a statement, the court may use it as evidence if it obtains a conviction on the voluntariness as a result of an investigation conducted by a method deemed appropriate, and it does not necessarily require a prosecutor to prove the voluntariness (see Supreme Court Decision 83Do3228, Mar. 13, 1984).

According to the records, it is acknowledged that Defendant 9 had made a statement in accordance with the facts charged that he was aware of the existence of the "Yannam Committee" upon the examination of the quality of warrant and that he was the assistant of the committee, and that the above statement was made at will, and the court below seems to have used it as evidence under the above judgment.

Therefore, on the premise that the above statement was not made voluntarily, the ground of appeal pointing out an error in the employment of evidence by the court below is without merit.

(2) The entry of a foreign organization

As seen above, the admissibility of the computer diskettes confiscated by Nonindicted 2 is not recognized. However, even if the contents of the documents contained in the above computer diskettes were excluded, the evidence adopted by the lower court can be found to have been admitted as a dual organization by comparing them with the records. Thus, the lower court’s error by which the documents recorded in the above computer diskettes were used as evidence for joining the dual organization is not affected by the conclusion of the judgment against the above Defendant.

E. As to the possession of part of pro-enemy materials against Defendant 8

According to the records, Defendant 8’s custody of the documents, “the Mono special head of a group,” which read that the act of an anti-government organization was praiseed, rubber, and accompanied by the act of an anti-government organization, can be acknowledged. Thus, the crime of pro-enemy by the custody of the above documents was established, and then the above documents were deleted, and whether it is easy to recover the above documents after deletion, and whether it is possible to recover them actually, does not affect the nature of the crime of pro-enemy organization’s possession.

Although the reasoning of the court below is somewhat insufficient, the judgment of the court below which found the defendant guilty on the above part of the charges is just and there is no error of law by misapprehending the legal principles on the possession of pro-enemy

F. As to the defendant 1, 2, 3, 4, 5, 6, 7, and 8 (excluding the part of possession of pro-enemy contents in the foregoing)

The court below found the Defendants guilty of the facts charged by forming or joining an anti-government organization with respect to the aforementioned Defendants by using documents and printed materials of the computer diskettes seized by Nonindicted 2 as evidence. The court below held that even if the aforementioned computer diskettes’s seizure procedure or seizure method was not unlawful and its content was not fabricated, it cannot be used as evidence because it was not proven that the authenticity of the establishment of the documents contained in the above computer diskettes was not proven. In addition, it is not sufficient to find the Defendants guilty of each of the above facts charged as to the above Defendants solely on the video tapes with the appearance of access to Nonindicted 2’s house.

In conclusion, the court below erred by misapprehending the legal principles on the admissibility of computer diskettess, thereby finding the guilty of the facts charged solely on the evidence without admissibility or evidence with insufficient probative value.

3. Therefore, among the judgment of the court below, the part concerning the formation or joining of the remaining Defendants except for the defendants 9 (including the part concerning the formation or joining of an anti-government organization which is the primary charge corresponding thereto) and the part concerning the praise, rubber, and Dong (including the meeting part with members of an anti-government organization corresponding thereto) of the anti-government organization cannot be reversed. Meanwhile, since the above crime and the former part of Article 37 of the Criminal Act are concurrent crimes, the remaining guilty parts of the judgment of the court below against the defendants 2, 3, 4, 7, and 8 (the contents concerning the production, acquisition, and possession of pro-enemy contents) cannot be reversed together with the above facts charged, the part concerning the defendant 1, 2, 3, 4, 5, 6, 7, and 8 (including the part concerning the preparatory charge against the above defendants, joining North Korea or joining the anti-government organization, and the part concerning the ancillary charge against the defendants 2, 3, and 4,7, and the part of the court below's appeal against the defendant 9.

Justices Cho Chang-hoon (Presiding Justice)