The case holding that there was an error in the misapprehension of legal principles under Article 2 of the National Security Act and Article 98 (1) of the Criminal Act

The requirement of "a member of, or a person who is ordered to, an anti-government organization" under Article 2 of the National Security Act is required only for the crime of espionage under the National Security Act, which is a principal offender. In the crime of aiding and abetting, if the necessity of such requirement is recognized as a "espionage of an anti-government organization," it can be a principal agent.

Article 2 of the National Security Act and Article 98 of the Criminal Act

A

B and one other

Prosecutor (B. C)

Seoul Criminal District Court Decision 72No1344 delivered on January 9, 1973, including Seoul Criminal District Court Decision 72No1344 delivered on January 9, 1973

1. The appeal by the defendant A is dismissed. One hundred days of detention days after the appeal by the defendant A shall be included in the original sentence; and

2. The lower judgment against Defendant B and C is reversed, and the case is remanded to the Seoul High Court.

1. The defendant A and his defense counsel's grounds of appeal are examined together.

First of all, the fact-finding of the court below is that there is a serious mistake of fact in violation of our experience rules. However, when comparing the various evidences stated in the judgment of the court of first instance maintained by the court of first instance according to the records, all of the adoption of evidence was legitimate, and according to the evidence, the facts of the crime of this case against the defendant are sufficient to be recognized, and there is no violation of any experience rules, such as defense counsel's assertion,

Next, in light of the fact that the defendant was living in the Republic of Korea after having divided the past and transferred the past completely, the sentence of this case sentenced to the defendant 15 years imprisonment is too harsh.

However, in light of the facts of this case, it does not seem that the sentence of the first instance court maintained by the court below is extremely unfair, considering all the facts constituting the conditions for sentencing in light of the facts of this case.

2. We examine the Prosecutor’s grounds of appeal.

In the judgment of the court below, while maintaining the judgment of the court of first instance that acquitted Defendant B and C, there is no evidence to acknowledge the fact that they received an order from an anti-government organization or a member thereof even though the records were recorded, and unless they were ordered to do so, it is not necessary to determine whether they would act as a counter-espionage or whether they would have an intention to aid and aid a counter-espionage.

Article 2 of the National Security Act provides that if a member of an anti-government organization or a person under its order commits an act as provided in Articles 92 through 99 of the Criminal Act for the accomplishment of its purpose, he/she shall be punished by the penalty as provided in the respective Articles, and the subject of all crimes violating Article 2 of the National Security Act is limited to "a member of an anti-government organization or a person under its order". However, according to Article 98 (1) of the Criminal Act cited in Article 2 of the National Security Act, a person who acts as a counter-espionage for an enemy country or aids and abets a counter-espionage of an enemy country shall be punished by death, imprisonment for life, or for not less than seven years, and therefore, in the crime of aiding and abetting a counter-espionage, he/she needs to be punished by imprisonment for life, or imprisonment for not less than seven years, which requires a subjective requirement of "for an enemy country". On the contrary, in the crime of aiding and abetting a counter-espionage, this subjective requirement

In light of Article 98 of the Criminal Code cited in Article 2 of the National Security Act, the requirements required in the crime of aiding and abetting and abetting a espionage, which is a principal offender, are not required in the crime of aiding and abetting and aiding and abetting a espionage under Article 2 of the National Security Act, the requirement of "a member of an anti-government organization or a person who is ordered to do so" under Article 2 of the National Security Act should be limited to the crime of aiding and abetting and abetting a espionage, which is the principal offender, and it should be interpreted that if the necessity of such requirements is recognized as a "espionage of an anti-government organization," it can be interpreted as a principal agent.

The so-called "National Security Act" is in line with the legislative intent of the National Security Act and the previous interpretation of the Supreme Court is considered to have been the same purport (see Supreme Court Decision 4293 Form 807 Decided January 27, 1961).

Thus, the court below should have deliberated and judged whether the crime of a counter-espionage under the National Security Act was established, such as whether Defendant B and C were a member of an anti-government organization or not, and whether Nonindicted D was aware of the fact that he was a counter-espionage of an anti-government organization at the time, and whether he had the intention to assist and assist the counter-espionage activity, and whether his act was objectively and indirectly related to the performance of a counter-espionage's duties, and was made easy to conduct a counter-espionage activity.

Nevertheless, the judgment of the court below did not reach this point, and it is erroneous in the misapprehension of the law that the defendants maintained the judgment of the court of first instance and dismissed the appeal by the prosecutor because they cannot be the subject of it, which affected the conclusion of the judgment.

3. Therefore, Defendant A’s appeal is without merit and is dismissed, and one hundred days out of the detention days after the final appeal is included in the original sentence pursuant to Article 57 of the Criminal Act. The prosecutor’s appeal against Defendant B and C is with merit and is so decided as per Disposition by the assent of all participating judges.

Justices Yang Byung-ho (Presiding Justice)