Whether there is a dolusence that there is a meeting with the members of the North Korean group solely on the sole basis of the fact that they were kidnapped to the North Korean group in the guard of North Korea while engaging in fishing beyond the fishing reservoir line or military decentralization as long as they did not engage in fishing beyond the fishing reservoir line, or that they were kidnapped to the North Korean group.

Even if the Defendants were engaged in fisheries beyond the fishing base line, it cannot be readily concluded that there was dolusent intent that the Defendants would meet with the members of the North Korean leader group, unless they were engaged in fishing beyond the fishing base line, in view of the appearance of the North Korean leader security guards even if they appear.

Defendant 1 and 58 others

Prosecutor

Seoul High Court Decision 70No729 delivered on June 26, 1973

All appeals are dismissed.

In light of the reasoning of the judgment below as to the Defendants’ violation of the public law, violation of the National Security Act, and espionage conspiracy among the facts charged in the instant case, the first instance court's act itself is acknowledged as to each of the above offenses against the Defendants. However, it is reasonable to view that the Defendants' act is a forced act under the circumstance that the Defendants' act would lead to unpredictable harm to life and body if they were committed in accordance with the strong direction of their members in an area under the control of North Korea leader or did not make a true statement about the examination of their members, and that it does not constitute a crime under Article 12 of the Criminal Act. The court below supported the first instance court's judgment on the ground that there was no error of law in the misapprehension of legal principles as to the judgment. The prosecutor's ground of appeal on this issue is that if the Defendants were forced to enter an area under the control of North Korea leader, it can be deemed that it was forced at the time of original adjudication, but in this case, the Defendants' act would have affected the conclusion of the judgment by misapprehending the legal principles as to the members or the evidence.

In general, in the case of the defendants' fishing operations beyond the Military Demarcation Line, there is a risk of being released by the security of North Korea, such as the theory of the lawsuit, and there is a meeting with the members of the North Korean group after being paid.

However, in the case of Defendant 2, 3, 4, and 5, comprehensively considering the first instance court and prosecutorial office’s statements and each of the statements at the police station in the case of the same Defendants 2, 3, 4, and 5, the said Defendants were to have been engaged in fishing with the fishing force located near the north west west wester line, and to have the fishing boat run above the fishing ground 10:0 on May 29, 1968, 21:00, and 7:00 on the following day, they were to see the fact that the crew members were able to break out the above fishing net 1:0,000 on the south wester line and walk the rest of the vessel, and to have the vessel walked to 7:0,000 on the south wester line, and to have the vessel walked to 5:0,000 on the south wester line and to have 7:7,000 on the south wester line.

Thus, in the case of the above defendants 6 and 7, the defendants could not be deemed to have engaged in fishing operations beyond the Military Demarcation Line at risk of being caught by the guard of the North Korean leader, even though they predicted that they would be caught, and in addition, the above defendants 2, 3, 4, 5 et al. were engaged in fishing operations beyond the Military Demarcation Line, and even if they were in accordance with the method of their withdrawal, even if they were to have been carried out the fishing storage line located south of 2 miles from the Military Demarcation Line, they would be able to avoid kidnapping from the Military Demarcation Line, and therefore, they cannot be deemed to have predicted the kidnapping.

Finally, in the case of the remaining Defendants except the above Defendants, the place where the same Defendants were engaged in fishing, and they were arrested by the North Doggb government, which exceeded the Military Demarcation Line and the fishing bottom line during the fishing operation. Thus, all of the Defendants of this case were arrested, and there is no other evidence to acknowledge that they were engaged in fishing, it cannot be concluded that there was a criminal intent for the crime of this case (or willful negligence), on the ground that it is possible to expect that the above general forecast was possible, and that there was no error in the misapprehension of the legal principles as to the above crimes of this case, since the prosecutor's decision as opposed to the above in this case is the Supreme Court Decision 69Do171 delivered on December 5, 1969, it cannot be seen that there was any error in the misapprehension of the rules of evidence or in the misapprehension of legal principles as to the above crimes of this case. Accordingly, the court below's decision did not err in the misapprehension of legal principles as seen above.

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

Justices Yang Byung-ho (Presiding Justice)