[1] The concept and standard of determining "a secret" under Article 4 (1) 2 (b) of the National Security Act

[2] Whether a crime under Article 5 (1) of the National Security Act is an objective crime (affirmative) and the burden of proving whether the crime is "the purpose of supporting an anti-government organization, etc." (=public prosecutor)

[3] Requirements and criteria for recognition as a "personal expression" under the National Security Act, and the burden of proof as to the existence of "the purpose of a personal act" (=public prosecutor)

[4] The elements for establishing the "crime of assembly and communications, etc." under Article 8 (1) of the National Security Act

[5] In a case where the Defendant was indicted for violating the former Protection of Military Installations Act and the former Military Air Bases Act by inserting photographs of military installations and the shapes of military aircraft sites in the military facility protection area by inserting or printing on the Internet homepage the pictures, the case affirming the judgment below which acquitted the Defendant on the ground that the inserting of pictures on the Internet homepage cannot be seen as “the publication of documents, paintings, and books”

[1] Article 4 (1) 2 (b) of the National Security Act / [2] Articles 4 (1) and 5 (1) of the National Security Act, Article 308 of the Criminal Procedure Act / [3] Article 7 (1) and (5) of the National Security Act, Article 308 of the Criminal Procedure Act / [4] Article 8 (1) of the National Security Act / [5] Article 12 (1) of the Constitution, Article 1 (1) of the Criminal Act, Article 1 (1) of the Criminal Act, Article 8 subparagraph 2 of the former Protection of Military Bases and Installations Act (repealed by Article 2 of the Addenda to the Protection of Military Bases and Installations Act, Act No. 8733 of Dec. 21, 2007), Article 15 (see Articles 9 (1) 4 and 24 (4) of the current Protection of Military Bases and Installations Act), Article 24 (1) of the former Protection of Military Bases and Installations Act (see Article 4 (2) of the current Protection of Military Bases and Installations Act)

[1] [4] Supreme Court Decision 97Do1656 delivered on September 9, 1997 (Gong1997Ha, 3211) / [1] Supreme Court en banc Decision 97Do985 delivered on July 16, 1997 (Gong1997Ha, 2243) Supreme Court Decision 200Do542 delivered on June 24, 2003 (Gong2003Ha, 1646) / [3] Supreme Court Decision 2007Do7042 Delivered on August 20, 209 (Gong209Ha, 1572), Supreme Court en banc Decision 2010Do1189 delivered on July 23, 2010 (Gong2010Ha, 1696) and Supreme Court Decision 2010Do12819 delivered on July 219, 2010 (Gong20109Do12179709 decided Feb. 217, 2019, 2010101.

Defendant

Prosecutor

Attorney Sick-jin et al. and 11 others

Seoul High Court Decision 2008No417 decided Dec. 30, 2008

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the detection, collection, and disclosure of military secrets or national secrets

Since secret under Article 4 (1) 2 (b) of the National Security Act is all facts, goods, or knowledge beneficial to the Republic of Korea that may not be confidential or confirmed with respect to each anti-government organization, such as politics, economy, society, and culture, they shall have the real value of protecting secret as it might cause danger to the national safety, and if disclosed, it shall have the effect that it constitutes an act of disclosure of secret to the general public by taking into account the degree of development of mass media, such as newspapers and broadcasting, scope of reading and listening, and the subject of publication, and thus, it shall not be deemed that an act of disclosure of secret to the general public constitutes an act of disclosure of secret under Article 4 (1) 1 of the National Security Act (see, e.g., Supreme Court en banc Decision 9Da17, supra). Thus, if an act of disclosure of secret constitutes an act of disclosure of secret to the general public under Article 4 (1) 5 of the National Security Act, it shall not be deemed that an act of disclosure of secret to the general public and an anti-government organization.

The lower court found the Defendant not guilty of the facts charged on the following grounds: (a) on the facts charged that the Defendant voluntarily discovered, collected, or disclosed military secrets and national secrets for the purpose of supporting anti-government organizations, as described in the summary of the facts charged in the instant case: (b) part of the matters detected, collected, or disclosed by the Defendant does not constitute secrets as publicly known facts on the Internet site or press, etc., and (c) the remainder falls under all secrets; (d) in light of the circumstances leading up to detection, collection, and disclosure of them and the form of such act, etc., it is difficult to recognize that the Defendant had the purpose of supporting anti-government organizations, etc. at the time

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to military secrets or national secrets, or of exceeding the bounds of the principle of free evaluation of evidence selection

2. As to the grounds of appeal on the production, possession, and distribution of praises, rubber, publicity, concert, and pro-enemy contents

The principle of interpreting that the National Security Act shall 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. In addition, to be recognized as pro-enemy materials under the National Security Act, the content of the expressive materials must be active and aggressive to threaten the existence and security of the State and the liberal democratic basic order, which is the protected legal interest of the National Security Act. Whether there is such a suitability should be determined by taking into account not only the overall contents of the expressive materials, but also the motive for the production, the form of the expressive act, and matters related to external activities, the circumstances at the time of the expressive act, etc., and the existence or absence of such suitability should be determined through an objective analysis of the entire contents through the context, not only one of the expressive materials but also through an objective analysis of the overall contents thereof. In addition, to establish a crime as prescribed in Article 7(5) of the National Security Act, the purpose of the act should be to commit this act, and the prosecutor must prove that the act was committed with the intent to commit this act.

A. As to the grounds of appeal on the possession and distribution of letters written by Nonindicted 1

The court below found the defendant guilty on the facts charged that the defendant's act of publishing the writing written by the non-indicted 1 on his Internet homepage as stated in the summary of the facts charged in this case, and held and distributed pro-enemy contents, on the ground that the contents of the "non-indicted 1's policies against North Korea, its causes, progress, and prospects" cannot be deemed as active and aggressive to threaten the nation's existence and security and free democratic basic order, and thus constitutes pro-enemy contents under Article 7 (5) of the National Security Act, and all of the other articles constitute pro-enemy contents, but it is difficult to recognize that the defendant had a pro-enemy purpose at the time of possession and distribution in light of the circumstances where the defendant possessed and distributed them, and the form of such act, etc.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the purpose of pro-enemy or pro-enemy act, or exceeding the bounds of the free evaluation of evidence.

B. As to the grounds of appeal on the praise, rubber, promotion, and aid through lectures in Japan and Korea

The court below held that the defendant's act of anti-government organization was not proven to have any substantial danger and injury in relation to the defendant's act of anti-government organization by forcing North Korea on June 15, 2002 and June 16, 2002, Cheongwon-si on September 7, 2005, Masan-si on November 14, 2005, Masan-si on September 26, 2006, Cheongju-si on September 27, 2006, and Cheongju-si on October 18, 2006, and the Busan Metropolitan City on October 18, 2006. The court below found that the defendant's act of anti-government organization was committed with the acts of anti-government organization, and that there was no evidence to prove that the defendant's act of anti-government organization was committed with the threat of substantial harm and injury to the basic order of a free democracy and its existence.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on risk of substantial harm to the national existence and security or democratic fundamental order, or exceeding the bounds of the principle of free evaluation of evidence in selecting evidence and

C. As to the grounds of appeal on the production and distribution of the Defendant’s writing

The court below found the defendant guilty on the facts charged on the following grounds: (a) as stated in the summary of the facts charged in this case, the defendant's writing written by himself/herself or the writing written by him/her or the writing written by his/her North Korea, as described in subparagraphs (h), (i) through (m), (m) through (f) are posted on the Uniform News website or by posting them on his/her own website; and (b) praise, encourage, promote, promote, carry, transport, and distribute all anti-government organizations; and (c) as to the facts charged, the defendant's production, reproduction, possession, transportation, and distribution of anti-government organizations is not considered as active and aggressive that may threaten the nation's existence and security and democratic fundamental order; (d) the contents written by him/her do not constitute pro-enemy contents under Article 7 (5) of the National Security Act; (e) although the contents written by him/her constitute pro-enemy contents, it is difficult to recognize the purpose of this act against the defendant; and (e)

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the risk of substantial harm to the national existence and security or democratic fundamental order, or in violation of the principle of free evaluation of evidence selection and fact-finding.

D. As to the ground of appeal as to the Defendant’s book holder

The court below found the defendant guilty of the facts charged that the defendant possessed a book with pro-enemy pro-enemy, such as the summary of the facts charged in this case. The defendant's possession of the book, on the ground that the contents of the book are not active and aggressive, that it does not constitute pro-enemy pro-enemy under Article 7 (5) of the National Security Act, since the contents of the book are not deemed as active and aggressive that threatens the nation's existence and security and the free democratic fundamental order, it does not constitute pro-enemy pro-enemy under Article 7 (5) of the National Security Act, but all of the remaining books correspond to pro-enemy pro-enemy, but it is difficult to recognize that the defendant had a pro-enemy intent at the time of possession of the defendant in light of the circumstances and attitudes of the defendant's possession.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the purpose of pro-enemy or pro-enemy act, or exceeding the bounds of the free evaluation of evidence.

3. As to the ground of appeal on the point of meeting and communication

The interpretation principle that the National Security Act shall be applied restricted to cases where there is an obvious risk of substantial harm to the existence and security of the State or democratic fundamental order is also applicable to the crime of meeting, communication, etc. as provided in Article 8 of the National Security Act. Furthermore, the crime of meeting, communication, etc. as provided in Article 8(1) of the National Security Act is established with the knowledge of the fact that the crime of meeting, communication, etc. is an interest of an anti-government organization, or with the knowledge of the fact that it threatens to endanger the existence and security of the State or democratic fundamental order, and it is sufficient that it is recognized as meeting, communication, etc. in a series of activities for the accomplishment of purpose, but if it is done at a certain level, it does not constitute a crime of meeting, communication, etc. as provided in the above provision, unless it is done at a courtesy or private level (see Supreme Court Decision 97Do1656, Sept. 9, 197).

The court below determined that the defendant, from June 14, 2002 to June 16, 2002, during the meeting with Non-Indicted 4, members of the Korean Democratic Unification Union, anti-government organization, Non-Indicted 5, and Non-Indicted 6, and posted on the Internet homepage of the Unification News on February 27, 2003, the "Report on the Nuclear of the United States Armed Forces in Korea (146 sheet) - Non-Indicted 5 sent comments to Non-Indicted 5, Non-Indicted 7, as the title "Jink", and sent comments to Non-Indicted 5 on March 1, 2003, and acquitted Non-Indicted 8 and Non-Indicted 96 of the facts charged, on the ground that the defendant met with Non-Indicted 8 of the members of the Korean Democratic Unification Union of Korea, who were anti-government organizations, and met with Non-Indicted 7 on March 27, 2004, and received a series of the above facts charged for the purpose of communication and correspondence from 194.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on meetings and communications, or exceeding the bounds of the principle of free evaluation of evidence in selecting evidence

4. As to the ground of appeal on the violation of the Naval Bases Act, the violation of the Protection of Military Installations Act, and the violation of the Military Air Bases Act

A. As to the ground of appeal on the violation of the Naval Bases Act

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding that there is not sufficient evidence to prove the facts charged that the defendant taken the shape of the naval base within the Jinhae-si and Minhae-si's naval base district around February 12, 2006, and found the defendant not guilty of the facts charged. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in selecting evidence or recognizing facts.

B. As to the ground of appeal on the violation of the Protection of Military Installations Act and the violation of the Military Air Bases Act

The principle of no interpretation derived from this requires that a crime and a punishment shall be prescribed by law in order to protect an individual's freedom and rights from the arbitrary exercise of the state's penal authority, and the principle of no interpretation derived from this requires a strict interpretation of the provision of a sex shall be prohibited from analogical interpretation with a content different from the original meaning expressed a sex provision disadvantageous to the defendant (see Supreme Court en banc Decision 92Do1428 delivered on October 13, 1992).

The court below found the Defendant not guilty of the facts charged on the following grounds: (a) as to the facts charged that the Defendant posted on his Internet homepage on June 29, 2004, July 4, 2004, and July 20, 2004; (b) inserted the photographs of military installations in the military facility protection zone, the shapes of military aircraft sites, and the documents, drawings, and books by inserting the photographs of military installations in the military installations protection zone, and the shapes of military aircraft sites, and published them, the court below found the Defendant not guilty of the facts charged on the ground that the publication of documents, drawings, and books cannot be deemed as publication of documents, drawings, or books, by viewing that the posting of the photographs of military installations and the shapes of military aircraft sites in the

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the publication of documents, drawings, and books under the Protection of Military Installations Act

5. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)