2013No1098 Violation of the National Security Act (praises, rubber, etc.)

A

Prosecutor

On the present date of prosecution, and on the second trial;

Ulsan District Court Decision 2013Ma2028 Decided December 6, 2013

June 27, 2014

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Although the expressive materials of this case are active and aggressive that threatens the existence and security of the State and the free democratic fundamental order, the judgment of the court below did not constitute pro-enemy materials with regard to the acquittal portion. It erred by misapprehending the legal principles.

B. Unreasonable sentencing

In light of the nature of the crime, such as not imposing a suspension of qualification even though it is necessary to deprive a person who violates the National Security Act of his/her right to vote for a certain period, the judgment of the court below is unfair.

A. Judgment on misconception of facts or misapprehension of legal principles

1) To be recognized as pro-enemy contents under the National Security Act, their contents must be pro-enemy and aggressive to threaten the existence and security of the nation and democratic fundamental order, which is protected under the National Security Act. Whether or not there exists such pro-enemy is limited to cases where the contents of pro-enemy contents are distributed or possessed for the purpose of praise, concert, etc., and the existence and security of the nation and democratic fundamental order should be limited to cases where there is an obvious risk of substantial harm to the nation’s existence and security and free democratic basic order (see, e.g., Supreme Court en banc Decision 2010Do1189, Jul. 23, 2010). The Supreme Court en banc Decision 2010Do758, Apr. 17, 2008; Supreme Court en banc Decision 2003Do758, Apr. 17, 2008).

2) On the premise of the above legal doctrine, the court below found the portion not guilty of each expressive material constitutes an active and aggressive expressive material that threatens the existence of the nation, and it is difficult to find that the Defendant’s motive at the time of distributing it, the mode of expression itself, matters related to outside and outside, and the circumstances at the time of expressive act, etc. considered all the circumstances such as the motive at the time of distributing it, and thus, it cannot be viewed differently, and thus, the part of distributing or possessing the said expressive material is not guilty. In light of the records, the judgment of the court below is just, and it does not err by misapprehending the facts or by misapprehending the legal principles as pointed out by the prosecutor, which affected the conclusion of the judgment.

3) Therefore, the prosecutor’s allegation of mistake or misapprehension of legal principles is without merit.

B. Determination on the assertion of unfair sentencing

As the court below conducted in the grounds for sentencing, the crime of this case was limited to the extent that the crime of this case was transferred to a large range of G or comments, or linked to North Korea’s obscenity, etc., and there was no activity to realize it in addition to such Internet-related act, and considering the fact that the defendant has no criminal power, and all the sentencing conditions stated in records and arguments, the court below’s punishment is too unjustifiable and unreasonable. Accordingly, the prosecutor’s allegation of unfair sentencing is rejected.

3. Conclusion

Thus, the prosecutor's appeal of this case is without merit, and it is in accordance with Article 364 (4) of the Criminal Procedure Act.

It is dismissed as per Disposition. It is so decided as per Disposition.

The presiding judge, the Full Judge Line

Judges Senior Professor

Judge Lee Jae-ju