[1] Requirements for the establishment of a crime of providing convenience under Article 7 of the former Anti-Public Act

[2] Whether an act subject to punishment of a crime of offering convenience under Article 7 of the former Anti-Corruption Act is limited to a case where there is a specific and obvious danger that may actually harm the existence and security of the State or democratic fundamental order (affirmative)

[1] The crime of offering convenience under Article 7 of the former Anti-Public Act (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply) is established when provision of guns, ammunition, money, goods, or other property benefits, or provision of convenience by other means, or by other means, knowing that the crime of offering convenience is committed against the former Anti-Public Act or the National Security Act (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply) is established when the person who committed the crime of violating the former Anti-Public Act or the National Security Act. The provision of convenience in this context is not required until the final perception is made, but at least

[2] The interpretation principle that the former anti-public law (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply) or the National Security Act shall be applied restrictedly only to cases where there is an obvious risk of substantial harm to the national existence and security or the free democratic fundamental order. Thus, among the acts of offering convenience under Article 7 of the former anti-public law, the target of punishment should be limited to cases where there is a specific and obvious danger that may have a substantial harm to the national existence and security or the free democratic basic order, and the target of punishment should be excluded from the scope of punishment if it is difficult to readily conclude such danger.

[1] Article 7 (refer to Article 9 of the current National Security Act) of the former Anti-Public Act (repealed by Article 2 of the Addenda to the National Security Act, Act No. 3318 of December 31, 1980) / [2] Article 7 of the former Anti-Public Act (repealed by Article 2 of Addenda to the National Security Act, Act No. 3318 of December 31, 1980) (refer to Article 9 of the current National Security Act)

[1] Supreme Court Decision 2010Do6310 Decided October 25, 2012

Defendant

Prosecutor

Law Firm Won, Attorneys Park Jong-soo et al.

Seoul High Court Decision 2009No3318 decided March 19, 2010

The appeal is dismissed.

We examine the grounds of appeal.

1. A. The crime of offering convenience under Article 7 of the former Anti-Public Act (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply) is established when a person who committed a crime violating the former Anti-Public Act or the National Security Act provides a place or provides convenience by other means, with the knowledge that the person who committed a crime of violating the former Anti-Public Act or the former Anti-Public Act (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply). The provision of convenience is established when the person who committed a crime of violation of the former Anti-Public Act or the National Security Act is provided with a place or by other means. Here, it is not necessary until the final recognition is made as to the person who committed a crime of violation of the former Anti-Public Act or the National Security Act, but at least there is a need to be a full recognition

Furthermore, the interpretation principle that the former Anti-Public Act or the National Security Act shall be applied to a crime of offering convenience to a person who commits an offense in violation of the former Anti-Public Act or the National Security Act, only when there is an obvious risk of substantial harm to the existence and security of the State or democratic fundamental order. As such, among the acts of offering convenience under Article 7 of the former Anti-Public Act, the subject of punishment should be limited to cases where there is specific and obvious danger that may pose substantial harm to the existence and security of the State or democratic fundamental order, and the subject of punishment should be excluded from the subject of punishment.

B. In full view of the circumstances stated in its reasoning, the lower court found the Defendant not guilty of the charges of violating the former Anti-Public Act on the grounds that the Defendant’s act in the facts charged does not constitute “convenition of convenience” under Article 7 of the former Anti-Public Act, and there is no evidence to acknowledge otherwise as a violation of the former Anti-Public Act, on the grounds that it is difficult to view that there is lack of awareness that “the person outside the public prosecution is related to the public sector” in spite of the contents and press reports of the investigative agency, and it is difficult to view that there is a specific and obvious

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to intentional violation of Article 7 of the former Anti-Public Law, national safety, and substantial danger to the citizens' freedom, and as long as the judgment and conclusion of the court below are justified, the remaining grounds of appeal purporting that a person who is suspected of a crime and investigated constitutes an element of a crime of violation of Article 7 of the former Anti-Public Law cannot affect the conclusion of the judgment, and therefore, it

2. Meanwhile, among the facts charged in the instant case, the violation of the Emergency Decree constitutes “when the Defendant’s case is not a crime” under the former part of Article 325 of the Criminal Procedure Act since it was unconstitutional or invalid before the revocation or invalidation of Emergency Decree No. 4, which is applicable to the relevant facts charged, and thus, it should be pronounced not guilty of this part of the facts charged (see Supreme Court en banc Decision 2011Do2631, May 16, 2013). Therefore, among the first instance judgment maintained by the lower court, the part of the first instance judgment which acquitted the Defendant of the facts charged should have been judged not guilty in light of the aforementioned legal principles. However, the first instance court did not render a separate verdict of acquittal as to the violation of the former Public Law, which is related to the violation of the Emergency Decree No. 4 in the first instance court’s order, and it was opened that the deceased Defendant’s heir may receive criminal compensation in accordance with the procedures and methods prescribed by the Criminal Compensation and Restoration of Honor Act (see Supreme Court en banc Decision 201619, Apr. 18, 2018, 2019).

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

Justices Lee In-bok (Presiding Justice)