Defendant

Both parties

Kim Jin-soo

Attorney Cha Jong-ho

Seoul District Court Decision 2001Gohap1045 Delivered on February 7, 2002

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts or misapprehension of legal principles

(A) As long as North Korea’s substance is recognized through the adoption of “Agreement on Settlement, Influence, and Exchange and Cooperation between South and North Korea” signed on December 13, 1991 between South and North Korea General Council, which declared three principles, such as independence, peace, and national unity in 1972, and entered into force on February 19, 192, and the simultaneous accession of South and North Korea realized on September 17, 1991, North Korea cannot be deemed as an anti-government organization as an independent country under the control of North Korea, and the lower court erred by misapprehending the legal principles on anti-government organizations under the National Security Act, thereby concluding that North Korea was an anti-government organization.

(B) Although the South Korea’s Republic of Korea’s Republic of Korea (hereinafter “the North Korea’s Republic of Korea”) is not a dual organization organized for the purpose of praise, rubber, propaganda, or assistance in North Korea, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine on the so-called “foreign organization” under Article 7(3) of the National Security Act, thereby concluding the South Korea’s Republic of Korea’s Republic of Korea as a dual organization.

(C) The Defendant’s meeting with North Korea is held within the scope of the government’s approval (in particular, “the third party council of North Korea” is held as part of a sector group approved by the government) and the Defendant’s attending a commemorative event held in front of the third party charter commemorative tower of North Korea (hereinafter “third party charter tower”) was held at the courtesy level to meet the atmosphere rather than stimulate North Korea.

In addition, the above act of the defendant cannot be deemed as a threat to the existence and security of the Republic of Korea or the liberal democratic fundamental order, or an obvious danger and injury to the Republic of Korea exists, and at the time, the defendant did not know that his act would endanger the existence and security of the State or democratic fundamental order, and did not intend to act in concert with the activities of North Korea or to benefit North Korea.

Nevertheless, the lower court erred by misapprehending the legal doctrine on special escape, praise, rubber, and meeting under the National Security Act, thereby finding the Defendant guilty of all the charges of this case.

(D) Violation of the statements of evidence

형사 판결에서 증거는 인정사실 전부를 뒷받침하기에 넉넉할 정도로 명확하게 설시되어야 하고, 구체적 인정 사실과의 관련성이 분명하게 표시되어야 하는데, 원심 판결은 증거의 요지란에서 피고인에 대한 여러 개의 범죄사실에 대한 증거를 일괄 설시하는가 하면, 증인 공소외 2 등 9인이 원심 법정에서 한 진술을 ‘증인 공소외 2, 3, 4, 5, 6, 7, 8, 9의 각 전부 또는 일부 법정 진술’이라고 뭉뚱그려 표시하는 등 증거와 범죄사실의 관련성을 명확히 표시하지 않았으며, 더욱이 증인 공소외 4, 5, 7, 8, 9의 법정 진술은 범죄사실과 배치되는 것임에도 이를 유죄의 증거로 거시하는 위법을 범하였다.

(2) Improper sentencing

In light of the various sentencing conditions of the instant case, the sentence of the lower court is too unreasonable.

(b) Inspections (unfair punishment);

In light of the various sentencing conditions in the instant case, the sentence of the lower court is too uneasible and unfair.

2. Judgment of party members

A. Defendant’s misunderstanding of facts or misapprehension of legal principles

(1) As to whether North Korea is an anti-government organization

In light of the fact that North Korea has the character of anti-government organization, which is bound to wear uniforms of our free democracy system, at the same time as the 2nd degree of dialogue and cooperation for the unification of South and North Korea, even though the Korean government has made a normal conference to discuss the reconciliation and cooperation between South and North Korea Koreans and the issues of unification, the South and North Korea has joined the United Nations at the same time, and the South and North Korea's collective agreement on the unification of South and North Korea was signed by the two North Koreas at the same time (see Supreme Court Decision 9Do4027, Dec. 28, 1999; Supreme Court Decision 9Do4027, Feb. 28, 1997; Supreme Court Decision 200Do9797, Apr. 16, 197).

In the same purport, the judgment of the court below which recognized North Korea as an anti-government organization is just, and there is no error of misapprehension of the legal principles as to anti-government organization under the National Security Act.

(2) As to whether the South Korea Coast Guard is a foreign organization

In the present situation where it is necessary to find unification and implement consistent adjustment rates and careful policies in contact with North Korea, the substitution of the foreign military iron bars, nuclear iron bars, and cooperation agreements with peace agreements as argued by North Korea as part of lectures, and the elimination of malicious laws, including the National Security Act, including the National Security Act, is adopted, and the North Korean government's headquarters consisting of the purpose of realizing such rules is a dual organization (see, e.g., Supreme Court Decisions 96Do2673, Dec. 23, 1996; 96Do2696, May 16, 1997).

In the same purport, the judgment of the court below that deemed the headquarters of the Republic of Korea as a pro-enemy organization is just, and there is no error in the misapprehension of legal principles as to the pro-enemy organization under the National Security Act.

(3) As to the assertion of misunderstanding of facts and misapprehension of legal principles on special escape, praise, rubber, and meeting under the National Security Act

According to the evidence duly adopted by the court below, the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 2 and the non-indicted 3 and the non-indicted 1 and the non-indicted 2 and the non-indicted 3 and the non-indicted 2 and the non-indicted 3 and the non-indicted 8 and the non-indicted 2 and the non-indicted 3 and the non-indicted 2 and the non-indicted 3 and the non-indicted 3 and the non-indicted 1 and the non-indicted 3 and the non-indicted 1 and the non-indicted 2 and the non-indicted 3 and the non-indicted 1 and the non-indicted 2 and the non-indicted 3 and the non-indicted 1 and the non-indicted 1 and the non-indicted 2 will be held.

In full view of the circumstances and contents of the conditional approval from the government of the Republic of Korea, the defendant's escape and meeting was conducted within the extent of the government's approval, the political meaning of three charter towers in front of the three charter towers, the contents of commemorative events held by the defendant and the members of the civil defense association including the defendant ("civil defense council"), and the measures such as deletion of the federal unification scheme and deletion of the national competition regulations through the "Gu civil defense council" ("Gu civil defense council"), but such measures were taken, such as deletion of the national unification scheme and deletion of the national competition regulations. However, it appears that the defendant's escape and meeting was conducted within the scope of the government's approval, or the defendant's participation in the three charter charter before the three charter towers was conducted at the same time as it does not pose a threat to the existence and security of the Republic of Korea, and there was no possibility of harm and danger to the defendant's work in light of the purpose and basic order of the National Security Act, and thus, the defendant's above act does not constitute a threat to the existence and security of the Republic of Korea.

(4) As to the allegation that the lower court’s explanation of evidence was unlawful

Even though the court did not specifically state what part of the evidence used to recognize a criminal fact, if the facts constituting an offense as indicated in the judgment can be acknowledged as the evidence, it cannot be said to be an unlawful evidence (see, e.g., Supreme Court Decisions 73Do2216, Nov. 13, 197; 83Do95, Jul. 12, 1983; 87Do1240, Oct. 13, 1987). According to the records, since the witness Nonindicted 4, 5,7, 8, and 9 of the court below's witness's statements made in the court of the court below can be recognized as a fact corresponding to the facts constituting an offense as indicated in the judgment of the court below, there is no reason for the court below's allegation that the evidence of the court below is unlawful.

(5) Ultimately, the defendant's above assertion is without merit.

B. Improper assertion of sentencing by both parties

Examining all the circumstances that form the basis for sentencing of the instant case, such as the following: (a) the Defendant’s age, character and conduct, criminal records, occupation and environment, the motive and purpose of the entry into North Korea, the details of the entry into North Korea, the circumstances after the Defendant’s act, and the influence of the Defendant’s act on the unification policy or unification method of the Government of the Republic of Korea or the citizens; and (b) the court below’s sentence (two years and six months of imprisonment and six months of suspension of qualification) on the Defendant is deemed appropriate, and it cannot be deemed that the Defendant and prosecutor’s above assertion are less light or unreasonable. As such, the Defendant and prosecutor’s above assertion are without merit (in particular, the Defendant cannot be suspended from executing punishment because he constitutes a repeated offense; (c) the statutory penalty of violation of the National Security Act due to a special escape among the instant crimes is death penalty, life imprisonment or imprisonment for more than five years; and (d) the court below, taking account of the aggravation of repeated offense and concurrent punishment and the Defendant’s normal punishment, has no choice to the Defendant’s imprisonment with limited imprisonment for two years and six months.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Sung-sung (Presiding Judge)