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

[2] In a case where the defendant was prosecuted for violating the National Security Act by having visited and worshiped in concert with the activities of an anti-government organization by visiting and worshiping North Korea, the case holding that the court below erred by misapprehending the legal principles on the part of the court below, although the defendant continued to act in concert with North Korea's activities such as propaganda and inciting North Korea after North Korea, and the act of worshiping in the Geumsan Memorial Complex used as a means of propaganda of North Korea's system after North Korea constitutes an act of concert under

[1] The term “an act of concert” under Article 7(1) of the National Security Act refers to an act of acting in concert with an anti-government organization by asserting or complying with the act of concert with the act of concert with an anti-government organization, etc. In addition, the interpretation principle that the National Security Act should be applied narrowly to the act of concert with an anti-government organization, etc. is likewise applicable to the crime of concert with an anti-government organization, etc., only in a case where there is an obvious risk of substantial harm to the existence and security of the State or democratic fundamental order. Therefore, the act of concert prohibited under Article 7(1) of the National Security Act should reach the extent that it actively expresses his/her intent to comply with and join the act of concert with 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.”

[2] In a case where the defendant was indicted for violating the National Security Act for violating the National Security Act by visiting and participating in an anti-government organization by participating in an anti-government organization, the case holding that the court below erred by misapprehending the legal principles as to the act of concert under Article 7 (1) of the National Security Act, even though it is sufficient to see that the defendant's act of worship in the Geumsan Memorial, which was used as a means of propaganda in North Korea, while continuing to act in concert with North Korea's propaganda and inciting North Korea's activities after North Korea, and expressed his/her intention to actively respond to and join North Korea's activities to the extent that it would be evaluated as praise, publicity, etc.

[1] Article 7 (1) of the National Security Act / [2] Article 7 (1) of the National Security Act

[1] Supreme Court en banc Decision 2003Do758 Decided April 17, 2008 (Gong2008Sang, 718) Supreme Court Decision 2012Do635 Decided May 9, 2012 (Gong2012Sang, 1021)

Defendant

Prosecutor

Law Firm Chang-chul, Attorney Lee Young-soo

Seoul Central District Court Decision 2013No2393 Decided September 25, 2013

Of the judgment below, the part on convictions and the part on the violation of the National Security Act (e.g., praise, rubber, etc.) arising from the acts of worship in the Geumsan Memorial and the acts of writing in the records of visitors’ book are reversed, and this part of the case is remanded to the Panel Division

The grounds of appeal are examined.

1. As to the violation of the National Security Act (e.g., praise, rubber, etc.) by the act of recording in the Geumsansan Memorial Hall and the visitors’ book

A. The court below found the defendant guilty on the part of the facts charged that the defendant attended the resolution meeting before and after the unification contest of the nation held in North Korea among the facts charged of the activities of anti-government organizations, such as this case, and adopted the resolution with other participants, that he participated in the meeting of Pyeongtaek-si, Sejong-si, the unification festival of the nation, the 8/15 Korean National Assembly, and that he met with the speech and adoption of resolution, etc., and found him guilty on the part of the above facts charged. The court below found the defendant guilty on the part of the above facts charged that the defendant met with the above acts of anti-government organizations, such as acts of anti-government organizations, etc. on the ground that it is hard to find the defendant guilty of the above acts of anti-government organizations and acts of anti-government organizations, such as acts of anti-government organizations, etc., such as acts of anti-government organizations, and acts of anti-government organizations, etc., such as acts of anti-government organizations, etc., such as acts of anti-government organizations, etc., with the contents of the above report and its conclusion that it cannot be found guilty.

B. First, examining the Defendant’s “the part regarding the act of entering the visitors’ book at the time of visiting the Geumsan Memorial Cemetery” in light of the records, the lower court did not err in its judgment by misapprehending the logical and empirical rules, contrary to what is alleged in the grounds of appeal.

C. However, we cannot agree with the judgment of the court below that the defendant's "an act of worshiping in the Geumsan Memorial Hall" does not constitute an act of assistance prohibited by Article 7 (1) of the National Security Act for the following reasons.

The term "an act of concert" under Article 7 (1) of the National Security Act refers to the act of acting in concert with, or joining in, the activities of an anti-government organization by asserting or opposing the same contents as the activities of an anti-government organization, etc. In addition, the interpretation principle that the National Security Act should be limited to cases where there is an obvious danger that may actually harm the existence and security of the State or democratic fundamental order. Accordingly, the same act of concert prohibited under Article 7 (1) of the National Security Act also applies to the act of concert with, an anti-government organization, etc., to the extent that it is evaluated as the "act of concert with, and promoting, the activities of an anti-government organization, etc." under Article 7 (1) of the National Security Act, to the extent that it expresses its intention to actively comply with, and taxes against, the activities of an anti-government organization, etc. (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008).

(5) In light of the following circumstances acknowledged by the reasoning of the lower judgment and evidence, the Defendant was aware that his/her act was conducted for the purpose of gathering the Nonindicted Party at the time of North Korea’s propaganda activities at the time of North Korea’s unification, such as pro-North Korea’s propaganda activities, and that it was difficult for the Defendant to actively participate in various events, etc. related to the unification of the Republic of Korea before and after August 15, 2007, and that the Defendant was aware of the fact that there was a possibility that his/her act would be used as his/her own means of propaganda activities, such as North Korea’s propaganda activities, and that it would be difficult for the North Korea to actively participate in the activities of North Korea’s propaganda activities, such as North Korea’s propaganda activities at the time of North Korea’s unification. However, the Defendant was aware of the fact that the North Korea’s activities were carried out in North Korea’s propaganda activities at the time of North Korea’s unification, and that the North Korea’s activities were carried out by North Korea’s overseas headquarters (see Supreme Court Decision 94Do30, etc.).

Nevertheless, the lower court, on the sole basis of the circumstances indicated in its reasoning, determined that the Defendant’s act could not be deemed to have actively expressed his intention to comply with and taxes against the activities of anti-government organizations, etc. In so determining, the lower court erred by misapprehending the legal doctrine on the act of concert under Article 7(1) of the National Security Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

2. As to the remaining violation of the National Security Act (praise, rubber, etc.) which the lower court acquitted on the Defendant

The lower court rendered a not guilty verdict on all of the charges on the ground that the content of the report of the labor newspaper, which seems consistent with each of the facts charged, alone, cannot be found guilty.

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in finding facts against logical and empirical rules.

3. As to the ground of appeal on the guilty portion

The prosecutor also appealed the guilty portion of the judgment of the court below, but there is no indication of the grounds for appeal in the petition of appeal and no statement of the grounds for appeal is found in the appellate brief.

4. Scope of reversal

For the foregoing reasons, the part on the charge of violation of the National Security Act (e.g., praise, encouraging, etc.) due to the act of worshiping in the Geumsan Memorial Memorial should be reversed. Since the part on the reversal is related to the violation of the National Security Act (e.g., praise, encouraging, etc.) due to the act of recording in the visitors’ book at the time of visiting the Geumsan Memorial Cemetery, which was acquitted by the lower court, this part shall also be reversed. In addition, the criminal facts found guilty are concurrent crimes with the above reversed part, and thus, one sentence should be imposed. Ultimately, the part on the charge of worshiping in the Geumsan Memorial Cemetery, which was acquitted by the lower court, as well as the part on the conviction due to the act of recording in the record of the visitors’ book

In addition, each of the crimes of this case found guilty is a crime committed within three years from the time when the defendant was sentenced to one year of imprisonment with prison labor due to the obstruction of performance of official duties, etc., and the provision on aggravation of repeated crimes should be applied. Furthermore, with regard to the sentence of suspension of execution, Article 62(1) of the former Criminal Act (amended by Act No. 7623 of July 29, 2005) should be applied pursuant to the proviso of Article 2 of the Addenda to the Criminal Act (amended by Act No. 7623 of July 29, 2005).

5. Conclusion

Therefore, among the judgment below, the part on conviction and the part on the violation of the National Security Act (e.g., praise, rubber, etc.) due to the act of worship in the Geumsan Memorial and the act of recording in the book of worship is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s remaining appeal is dismissed. It

Justices Ko Young-han (Presiding Justice)