Whether the house of Cho Jong-soo in Japan constitutes an area under the illegal control of an anti-government organization in the crime of illegal local visits under the National Security Act.

The court below found the defendant guilty by applying Article 6 (2) and (1) of the National Security Act to the facts of the third crime in its judgment against the defendant, but it is evident that the crime of illegal local visit requires the escape or escape from the area under the illegal control of an anti-government organization. Thus, it cannot be said that the defendant's house of non-indicted A, which is the assistant leader in Japan, visited by the defendant, is an area under the illegal control of an anti-government organization.

Article 6 of the National Security Act

B

Prosecutor and Defendant

Busan District Court (77Gohap34)

Supreme Court Decision 77Do3803 Decided February 28, 1978

Of the judgment of the court below, the guilty portion against the defendant shall be reversed.

A defendant shall be punished by imprisonment for not less than two years and six months and suspension of qualifications for the defendant.

One hundred and seventy days of detention days before the sentence of the judgment below is included in the above imprisonment.

Of the facts charged in the instant case, the charge of illegal local visits under the National Security Act (Article 3 of the Criminal Act at the time of original trial) is not guilty

The prosecutor's appeal is dismissed.

The gist of the grounds for appeal by the prosecutor is that the sentencing of the court below against the defendant is too unfasible and unfair (the part of the charges in this case which pronounced not guilty and dismissed by the court below has already been determined by the court of final appeal, and the remaining part of the charges in this case has already been determined by the court of final appeal shall be considered as the grounds for appeal by the prosecutor only on the grounds of unfair sentencing. The summary of the grounds for appeal by the defendant and the public defender, although the defendant did not have committed the same crime as the time of original judgment, the court below accepted that the defendant did not commit a crime as at the time of original judgment, as it was accepted by the investigative agency as a statement, and affected the judgment by misunderstanding the rules of evidence and misunderstanding the fact-finding, thereby affecting the conclusion of the judgment, and even if the defendant

First of all, the court below found the defendant guilty by applying Article 6 (2) and (1) of the National Security Act to the facts of the third crime in its decision against the defendant, but it is evident that the crime of illegal local visit under Article 6 of the National Security Act is the requirement of diving from an area under the illegal control of an anti-government organization or escape from such an area. Thus, it cannot be said that the defendant is an area under the illegal control of an anti-government organization, which is the co-government organization in Japan.

Therefore, the judgment of the court below that applied the crime of escape to the so-called "the National Security Act" to the defendant is erroneous in the misapprehension of the legal principles of the National Security Act, and affected the judgment. In this regard, the judgment below cannot be reversed. Therefore, the party member who did not go through a judgment on the above other grounds for appeal is reversed the judgment of the court below and it is again decided pursuant to Article 364 (2) and (6

Criminal facts against the defendant recognized as a party member are identical to the criminal facts Nos. 1 and 2 at the time of original adjudication, and the summary of evidence is the same as that of the judgment of the court below.

In contrast to the law, the point of provoking of public law among the judgment below of the defendant's holding, the point of provoking of public law is Article 6 (3) and (2) of the same Act. The point of provoking of money and goods under the National Security Act is each item of Article 5 (2) of the same Act. As to the violation of the anti-public law, the prescribed penalty shall be imposed, and the suspension of qualification shall be imposed concurrently pursuant to Article 16 of the anti-public law, Article 11 of the National Security Act, Article 16 of the anti-public law, Article 13 of the National Security Act, Article 5 (1) 3 of the Criminal Act, and Article 55 (1) 2 of the same Act, and Article 37 of the same Act, Article 38 (1) 2 and Article 50 of the same Act, and Article 50 of the same Act, the defendant shall be punished by imprisonment with prison labor within the scope of imprisonment with prison labor for a period of two years and seven years prior to the suspension of qualification.

Parts of innocence

The summary of this part of the facts charged is that the defendant, at around 17:00 on January 23, 1975, entered Japan and escaped to an area under anti-government organization by entering the house of the above A, which is controlled by anti-government organization, in order to consult with the execution of official works under the order of the order issued by the above A, who is a Cho Jong-ho in the 2nd part of the Busan Port of Law No. 200 on January 23, 1975, the defendant was a member of the Cho Jong-ho, who is an assistant officer in Japan, and the above act of the defendant is not a region under the illegal control of anti-government organization. Accordingly, the defendant's above act constitutes a case where the crime is not committed, and thus the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Park Jae-sik (Presiding Judge)