[1] The meaning of and standard for determining "foreign organizations" under Article 7 (3) of the National Security Act

[2] The meaning of and standard for determining the act of assistance in concert with an anti-government organization under Article 7 (1) of the National Security Act

[3] The requirements for “personal expressions” under Article 7(5) of the National Security Act, and the standards for determining whether the expressive materials are of merit

[4] 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 the crime was "the purpose of the act of immigration" (=the prosecutor) and the method of proof

[1] Article 7 (1) and (3) of the National Security Act / [2] Article 7 (1) of the National Security Act / [3] Article 7 (1) and (5) of the National Security Act / [4] Article 7 (1) and (5) of the National Security Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2003Do8165 Decided March 30, 2007 / [2] Supreme Court en banc Decision 2003Do758 Decided April 17, 2008 (Gong2008Sang, 718) Supreme Court Decision 2013Do1276 Decided January 29, 2014 (Gong2014Sang, 540)/ [3] [4] Supreme Court en banc Decision 2010Do189 Decided July 23, 2010 (Gong2010Ha, 1696) (Gong2014Do14573 Decided August 30, 2018)

Defendant 1 and three others

Defendants and Prosecutor

Law Firm local Law, Attorneys Park Jae-hwan et al.

Seoul High Court Decision 2015No442 decided January 19, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. Judgment as to the defendants' violation of the National Security Act (the composition, etc. of a foreign organization)

1) Probative value

The lower court determined the admissibility of evidence as to the documents printed out from the seized digital storage medium as follows. (1) Since the hearsay rule is applied to cases where the authenticity of the contents recorded is at issue, it may be used as evidence only when it is proven to be genuine by the maker or his statement at a preparatory hearing or during a public trial pursuant to Article 313(1) of the Criminal Procedure Act. However, the existence of the resolution of promise by ○○○○○○, the substance and existence of △△ Mano, the substance and existence of △△ Mano in the educational sector among △△△ Mano, the substance and existence of △△△ Mano in the educational sector, the fact and existence of △△ Mano in the educational sector, and the fact that such education sector as △ Mano in the educational sector, the “6/15 Practical Group of National Education”, and the “6/15 Uniform Korean Unification Teachers Association” opened an age of transformation, the documents prepared by the Prosecutor to prove that they were prepared by the National Preparatory Committee (hereinafter referred to as “Preparatory Committee for Education in the new Age of Ba”) cannot be used as evidence.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on the admissibility of evidence under Articles 313(1), 315 subparag. 2 and 3 of the Criminal Procedure Act.

(ii) the aptitude of the planning for the education campaign of the new era of transformation;

The so-called “foreign organization” under Article 7(3) of the National Security Act refers to a continuous and independent combination formed by many and specified persons for the purpose of praiseing, encouraging, promoting, or aiding and abetting the activities of anti-government organizations under Article 2 of the National Security Act, or promoting or inciting the disturbance of the State. In cases where recognition of such dual organization is made, its elements should be strictly limited and interpreted in light of the purpose of the above Act and the basic spirit of the principle of no punishment without law prohibiting analogical interpretation or analogical interpretation of the same Act, which is stipulated under Article 1 of the National Security Act. In addition, whether there exists the praise, encouraging, promoting, promoting, and aiding the activities of anti-government organizations, etc., as well as the overall contents of their activities, and the motive, behavior, mode, external-related ideas, and circumstances at the time (see, e.g., Supreme Court Decision 2003Do8165, Mar. 30, 2007).

For the reasons indicated in its holding, the lower court acquitted the Defendants on the violation of the National Security Act (the composition, etc. of a foreign organization) on the ground that the evidence presented by the prosecutor alone was insufficient to recognize that the preparation for the education campaign in the new age of transformation as an independent organization.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

B. Determination as to the violation of the National Security Act (e.g., praise, rubber, etc.) by Defendant 1’s Lee Dong-dong

Article 7(1) of the National Security Act provides that an act of assistance in the activities of an anti-government organization, etc. under the so-called "crime of assistance in the activities of an anti-government organization, etc." refers to an act of assistance in and cooperation with the activities of an anti-government organization, etc. by asserting the same content as the activities of an anti-government organization, etc., or committing an act consistent with such an act. In addition, the interpretation principle that the National Security Act should be limited to cases where there is an obvious risk of substantial harm to the existence and security of the State or democratic fundamental order, applies to the crime of assistance in the activities of an anti-government organization, etc. is likewise applicable. Therefore, an act of assistance prohibited under Article 7(1) of the National Security Act should reach the extent that it expresses an intention to actively respond to and join the activities of an anti-government organization, etc. to the extent that it is evaluated as "provening, encouraging, and promoting the activities of an anti-government organization, etc." under the same Article. In cases where it is difficult to deem that there is an obvious danger that the State's existence and security or democratic fundamental order.

For the reasons indicated in its reasoning, the lower court acquitted Defendant 1 on the charge of violating the National Security Act (e.g., praise, rubber, etc.) due to Defendant 1’s Lee

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine on immigration aid and omission of judgment.

C. Determination as to the Defendants’ violation of the National Security Act (praise, rubber, etc.) by possessing pro-enemy materials

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 nation’s existence and security and the liberal democratic fundamental order, which are protected legal interests under the National Security Act. Whether the expressive materials have such objection should be determined not only by the overall contents of the expressive materials, but also by taking into account the various circumstances, such as the motive for the production thereof, the form of the expressive act itself and matters related to the outside, and the circumstances at the time of expressive act (see Supreme Court en banc Decision 2010Do189, Jul. 23, 2010

For the reasons indicated in its holding, the lower court acquitted the Defendants of the part on the attached list 2 in the first instance judgment and the part on the attached list 2 in the judgment of the lower court on the charge of violation of the National Security Act (e.g., obscenity, rubber, etc.) caused by the Defendants

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine on the reasonableness of expressive materials, or omitting judgment

D. Judgment of the court below on the guilty portion

Although the prosecutor appealeds the entire judgment of the court below against the defendant, the prosecutor does not state in the petition of appeal or the appellate brief the grounds for objection to the conviction.

2. As to the Defendants’ grounds of appeal

A. Determination as to the Defendants’ violation of the National Security Act (praise, rubber, etc.) due to possession of pro-enemy materials

The crime under Article 7(5) of the National Security Act is a so-called purpose crime, which is producing, importing, copying, possessing, transporting, distributing, selling, or acquiring documents, paintings, or other expressive materials for the purpose of committing a pro-enemy act under paragraphs (1), (3), and (4) of the same Article. The purpose of the crime is to establish a crime, and it is clear that it is a so-called purpose crime. The purpose of the crime is to establish a crime, as an excessive subjective illegal element other than intent. As such, even if an actor recognized the nature of expressive materials and committed an act under paragraph (5) of the same Article, the element of the crime is not satisfied unless the purpose of the act is recognized. The prosecutor bears the burden of proving the facts constituting the element of the crime charged in a criminal trial. Thus, the prosecutor must prove that the actor committed an act under paragraph (5) with the knowledge that the actor was an pro-enemy act. In this case, if there is no direct evidence to prove the existence of a pro-enemy act, the act can be determined by considering the aforementioned indirect facts such as Defendant’s experience and status.

For the reasons indicated in its holding, the lower court convicted the Defendants of the part on the list 1 of the crime committed in the first instance judgment (excluding the part on the list 2 of the crime sight in the holding of the lower judgment) among the facts of the violation of the National Security Act (e.g., praise, rubber, etc.)

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the hearsay rule, the possession of representations, and the aptitude.

B. Determination as to Defendant 2 and Defendant 4’s general traffic obstruction

The lower court found Defendant 2 and Defendant 4 guilty on the grounds indicated in its reasoning. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of a general traffic obstruction.

3. Conclusion

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

Justices Ahn Jae-chul (Presiding Justice)