[1] Whether the act of a citizen of the Republic of Korea residing in a foreign country and entering into an area governed by anti-government organization constitutes "escape" under Article 6 (2) of the National Security Act (affirmative)

[2] Whether an act of a foreigner residing in a foreign country and entering an area under the control of an anti-government organization constitutes "escape" under Article 6 (1) and (2) of the National Security Act (negative)

[3] The case holding that in case where a person who had resided in Germany and lost the nationality of the Republic of Korea visited North Korea before and after the loss of the nationality of the Republic of Korea, the act of visit before the loss of the nationality of the Republic of Korea constitutes escape under Article 6 (2) of the National Security Act, but the act of visit

[4] Whether a violation of the National Security Act committed by a foreigner who visited the North Korean representative of the interest in North Korea residing in a foreign country under North Korea's order constitutes a crime committed by a foreigner abroad (affirmative)

[1] [Majority Opinion] In full view of the legislative purport of the National Security Act and the meaning of the language and text of Article 6 (1) and (2) of the same Act, in particular, the term of escape refers to an act that deviates from or escaped from the sovereignty or governing power of the Republic of Korea, and since the sovereignty of the Republic of Korea extends to the people as well as the territory of the Republic of Korea, the act of escape from the territory or governing power of the Republic of Korea can be deemed to fall under escape under each of the above provisions. Thus, escape under Article 6 (1) of the National Security Act includes an act of escape into an area where the sovereignty of the Republic of Korea is practically difficult to exercise. Thus, escape under Article 6 (1) of the National Security Act includes an act of escape from the territory of the Republic of Korea to the area where a citizen of the Republic of Korea resides in a foreign country and is actually difficult to exercise the sovereignty of the Republic of Korea regardless of the territory of the Republic of Korea.

[Concurring Opinion by Justice Kim Ji-hyung, Justice Jeon Soo-ahn, and Justice Ahn Dai-hee] The legislative purpose of the National Security Act is to guarantee the existence, safety, and continuity of the Republic of Korea, to preserve the Korean Peninsula and its accessory islands, and to secure effective control over them, while North Korea, which is an anti-government organization, actually governs a part of the Korean Peninsula, thereby threateninging the existence and security of the Republic of Korea. Considering that it is necessary to ensure the existence, safety, and continuity of the Republic of Korea, the escape under Article 6(1) and (2) of the National Security Act refers to the act of escaping from South Korea where the so-called territorial sovereignty of the Republic of Korea is practically exercised. Therefore, the act of a person residing outside the territory of the Republic of Korea and entering into the area governed by anti-government organization shall be deemed not to constitute escape under Article 6(1) and (2) of the National Security Act, regardless of whether the person is a citizen of the Republic of Korea or not.

[Concurring Opinion by Justice Park Si-hwan] (A) Justice Kim Ji-hyung, Justice Jeon Soo-ahn, and Justice Ahn Dai-hee

(B) Article 6(1) of the National Security Act provides that the National Security Act is subject to punishment for “an act of diving or escape from an area under the control of an anti-government organization” and Article 6(2) provides that “an act of diving or escape from an anti-government organization or a member thereof to receive an order from, or consult or to consult with, an accomplishment of its purpose is subject to aggravated punishment.” Article 6(2) provides that where a certain purpose is added as a basic element for an offense under Article 6(1) and a certain purpose is added, it shall be subject to aggravated punishment for an offense. Therefore, “escape” under Article 6(2) is the same concept as “escape” under Article 6(1) and is subject to punishment under Article 6(2).

[2] An act of a person other than a citizen of the Republic of Korea residing in a foreign country and entering into an area under the control of an anti-government organization does not constitute an act of departing from the area practically subject to sovereign power over the territory of the Republic of Korea or an act deviating from sovereign power over the citizen of the Republic of Korea. Thus, this is not included in the concept of escape under Article 6(1) and (2) of the National Security Act.

[3] In a case where a person who was a citizen of the Republic of Korea was residing in North Korea four times prior to the loss of the citizenship of the Republic of Korea, visited North Korea from Germany and subsequently visited North Korea from Germany, his residence, even after the loss of the citizenship of the Republic of Korea, following the acquisition of the German citizenship, the case holding that the act of visiting prior to the loss of the citizenship of the Republic of Korea constitutes escape under Article 6 (2) of the National Security Act, but the act of visiting after the loss of the citizenship of the Republic of Korea does not constitute the concept of escape

[4] As to the application of Article 6 (2) of the National Security Act to "an anti-government organization or a member thereof who was diving or escaped to receive an order from, or consult with, an accomplishment of its purpose," and Article 8 (1) of the same Act, "a person who contacts with a member of an anti-government organization or a person who was subject to such order by meeting, communication, or any other means despite the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order," if Germany visited the North Korean representative in Vietnam under the order of North Korea in Germany and visited the North Korean representative in Vietnam, and met the North Korean representative in his country in his country, the crime under each of the above elements is all Germany, and such crime is not punishable by the application of each of the above provisions unless it falls under the requirements under Articles 5 and 6 of the Criminal Act.

[1] Article 6 (1) and (2) of the National Security Act / [2] Article 6 (1) and (2) of the National Security Act / [3] Article 6 (2) of the National Security Act / [4] Articles 6 (2) and 8 (1) of the National Security Act, Articles 5 and 6 of the Criminal Act

[1] Supreme Court Decision 67Do1140 decided Nov. 28, 1967 (No. 15-3, 50) Supreme Court Decision 83Do383 decided Apr. 18, 1983 (Gong1983, 865) Supreme Court Decision 87Do1341 decided Sep. 8, 1987 (Gong1987, 160), Supreme Court Decision 90Do646 decided Jun. 8, 1990 (Gong190, 150), Supreme Court Decision 91Do2495 decided Dec. 24, 197 (Gong192, 72, 197) 93Do19381 decided Oct. 16, 197 (No. 1984, 197; 97Do19649 decided Oct. 18, 193) 194

A

Defendant and Prosecutor

Law Firm B and 2 others

Seoul High Court Decision 2004No827 delivered on July 21, 2004

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Violation of the National Security Act due to visit to North Korea

(1) First, we regard the part that the defendant who was a citizen of the Republic of Korea visited North Korea starting from Germany and visited North Korea four times from May 191 to March 193, 193, prior to the loss of the citizenship of the Republic of Korea upon the acquisition of German citizenship.

Article 6 (1) of the National Security Act provides that "any person who has escaped from, or escaped from, an area under the control of an anti-government organization with knowledge of fact that it may endanger the existence and security of the State or democratic fundamental order shall be punished by imprisonment for not more than ten years." Article 6 (2) of the same Act provides that "any person who has escaped from, or escaped from, an area under the control of an anti-government organization shall be punished by death, imprisonment for life, or imprisonment for not less than five years."

The National Security Act does not expressly state where escape under Article 6 (1) and (2) of the National Security Act refers to escape from the territory or control of the Republic of Korea. However, in full view of the legislative purport of the National Security Act for the purpose of securing the safety and continuity of the Republic of Korea that takes the Korean Peninsula, its attached islands and citizens as essential elements of existence, and the meaning of the text of each of the above provisions, in particular, the term "escape" refers to an act that deviates from the sovereignty or control of the Republic of Korea, and since the sovereign power of the Republic of Korea covers the territory of the Republic of Korea as well as the citizens, all of the acts that deviate from the territory or state where sovereign power is practically difficult to exercise, can constitute escape under each of the above provisions.

Therefore, the escape under Article 6 (1) of the above Act includes the act of entering into an area under the control of an anti-government organization, in addition to the act of entering, directly or through a foreign country, the territory of the Republic of Korea, regardless of the area practically under the control of an anti-government organization, as well as the act of entering into an area under the control of an anti-government organization in which the citizen of the Republic of Korea residing in a foreign country and it is difficult to exercise the sovereignty of the Republic of Korea, and it is reasonable to interpret that escape under Article 6 (2) includes the act of leaving from the area practically under the control of the Republic of Korea

Furthermore, since the language and text of the elements of Article 6 (2) of the National Security Act can be interpreted constitutional, and the prescribed act is punished only when there is a clear danger that may harm the national existence and security or democratic fundamental order, it cannot be deemed that the above provision violates the Constitution (see, e.g., Constitutional Court Order 99Hun-Ba27, 51, Apr. 25, 2002). The order under the above provision does not require the control relationship between the person who received the order and the person who received it, and there is no restriction on the form of order, and there is no need to deliver it by an secret method (see, e.g., Supreme Court Decision 90Do646, Jun. 8, 190).

In the same purport, the court below is just in recognizing the crime of escape under Article 6 (2) of the National Security Act against the defendant's act of departing from Germany where the defendant was residing in response to the invitation of North Korea four times from May 191 to March 193, 193, all prior to the loss of the nationality of the Republic of Korea, and visiting North Korea, and cooperating with the maintenance and continuation of the North Korean system, and the court below is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal. The defendant's ground of appeal on this part is dismissed

(2) The following is about the part of the defendant's visit North Korea departing from Germany on March 12, 1994, which was after the defendant lost the nationality of the Republic of Korea.

As seen earlier, the act of a citizen of the Republic of Korea residing in a foreign country and entering into an area under the control of anti-government organizations in which the sovereignty of the Republic of Korea is practically difficult to exercise, is included in the concept of escape under Article 6(1) and (2) of the National Security Act, as it constitutes an act deviating from the sovereignty of the Republic of Korea against the citizen of the Republic

However, the act of a person, other than a citizen of the Republic of Korea, residing in a foreign country and entering into an area under the control of an anti-government organization does not constitute an act departing from the area practically subject to sovereign power over the territory of the Republic of Korea or an act deviating from sovereign power over the citizen of the Republic of Korea. Thus, this is not included in the concept of escape under Article 6(1) and (2) of the National Security Act.

In contrast, Supreme Court en banc Decision 97Do2021 Decided November 20, 1997, which held that an act of a person who is not a citizen of the Republic of Korea residing in a foreign country and enters an area under the control of an anti-government organization shall also be included in the concept of escape under Article 6(1) and (2) of the National Security Act, etc. shall be modified to the extent inconsistent with this Opinion.

The court below held that the act of the defendant residing in Germany after the loss of the citizenship of the Republic of Korea upon the acquisition of German citizenship and visited North Korea from Germany on March 12, 1994 is included in the concept of escape under Article 6 (2) of the National Security Act. The court below erred in violation of the legal principle that the act of a person who is not a citizen of the Republic of Korea residing in a foreign country and enters into an area governed by anti-government organization is not included in the concept of escape under Article 6 (2) of the National Security Act, and the error affected the conclusion of the judgment.

Therefore, among the judgment below, the part of conviction of the defendant's visit to North Korea on March 12, 1994 in violation of the National Security Act cannot be maintained without further examining the remaining grounds of appeal by the defendant.

B. Part concerning attempted lawsuit fraud

A lawsuit fraud is an offense that acquires the other party's property or property interest by deceiving the court and obtaining a judgment favorable to himself/herself. As long as a claim in a lawsuit seeking monetary payment from the other party is filed with the knowledge that his/her assertion in the lawsuit is false, the lawsuit fraud has already started to enforce the lawsuit fraud, and even if winning the lawsuit, it does not change on the ground that there was no intention to execute the judgment.

In the same purport, the court below that recognized the defendant's liability for the crime of attempted litigation fraud is just, and there is no illegality in the misapprehension of legal principles as to the criminal intent of defraudation and the intention of unlawful acquisition, as otherwise alleged in the ground of appeal. This part of the defendant'

2. As to the Prosecutor’s Grounds of Appeal

A. Part of the misapprehension of legal principles as to the executives of anti-government organizations and other leading duties and escape, meeting, liaison, etc.

Article 1 of the National Security Act provides, “The purpose of this Act is to secure the security of the State and the lives and freedom of citizens by regulating any anti-state activities which may endanger the national security (Article 1); and “In interpreting and applying this Act, it shall be limited to the minimum extent necessary to achieve the above purpose, and it shall not be extended or interpreted or it shall not be permitted to unreasonably restrict the fundamental human rights of the people guaranteed by the Constitution,” and it shall be determined carefully in assessing the risk of endangering the existence, security or democratic fundamental order of the Republic of Korea, by sufficiently taking into account such purport.

In the same purport, the decision of the court below is just in holding that it is difficult to evaluate that the defendant's literary activities and the holding of the Uniform Science Meeting have engaged in the role of the executives of anti-government organizations or other leading duties, and that the defendant's act of visiting North Korea to attend and question the funeral ceremony and send a letter of life-saving and writing to D or to hold the Uniform Science Meeting cannot be deemed as having a risk of undermining the existence, security or free democratic basic order of the Republic of Korea, and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal. This part of the ground of appeal is not accepted.

B. Part concerning misapprehension of legal principles as to whether foreigners' overseas crimes are crimes

With regard to the application of Article 6 (2) of the National Security Act "a person who has been divingd or escaped to receive an order from, or consult with, an anti-government organization or a member thereof," and Article 8 (1) of the same Act "a person who contacts with a member of an anti-government organization or a member of an anti-government organization or a person who has received such order by meeting, communication, or any other means despite the knowledge that it may endanger the existence and security of the State or democratic fundamental order," if a German visiting a representative of the North Korean residing in Vietnam under the order of North Korea in Germany and only visiting a representative of the North Korean residing in Vietnam under the order of North Korea in Germany, the crime under each of the above elements is all Germany, and thus, constitutes a foreigner's overseas crime. Thus, unless the requirements under Articles 5 and 6 of the Criminal Act are satisfied, the above provisions cannot be applied.

In the same purport, the court below is just in holding that the defendant who lost the nationality of the Republic of Korea due to the acquisition of German citizenship visited the North Korean representative of the North Korean residing in Vietnam on July 7, 1997 under North Korea's order and met the North Korean representative of the North Korean employee at this place constitutes a foreigner's foreign crime, and there is no illegality as pointed out in the ground of appeal. The assertion that the North Korean representative of the North Korean resident in Vietnam can be viewed as the territory of the Republic of Korea is merely an independent opinion and cannot be accepted. This part of the ground of appeal is rejected.

C. The part concerning the other part of the judgment below's finding facts against the rules of evidence

The gist of the Prosecutor’s remaining grounds of appeal is that the prosecutor’s remaining grounds of appeal merely grounds for the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court, and do not constitute legitimate grounds of appeal. This part of the grounds of appeal

3. Conclusion

Therefore, among the judgment of the court below, the part of conviction against the violation of the National Security Act by visiting North Korea on March 12, 1994 cannot be reversed, and since the court below rendered a single sentence as to the remaining guilty portion in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment below's conviction among the judgment below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the prosecutor's appeal shall be dismissed. It is so decided as per Disposition. It is so decided as per Disposition by the assent of all participating Justices except for a separate opinion by Justice Kim Ji-hyung, Justice Jeon Soo-ahn, and Justice Ahn Dai-hee as to the conviction against the violation of the National Security Act by visiting North Korea among the judgment of the court below

4. Concurring Opinion by Justice Kim Ji-hyung, Justice Jeon Soo-ahn, and Justice Ahn Dai-hee as to the guilty portion of visit to North Korea

The majority opinion argues that escape under Article 6 (1) and (2) of the National Security Act refers to an act deviating from the sovereignty or governing power of the Republic of Korea, and since the sovereignty of the Republic of Korea extends to the citizens as well as the territory of the Republic of Korea, all acts of escaping from the area practically under the sovereignty of the Republic of Korea and in an area or condition where it is difficult to exercise the sovereignty of the Republic of Korea may constitute escape under each of the above provisions. However, escape under each of the above provisions refer only to the act of escaping from the area practically under the sovereignty of the Republic of Korea, and it does not include any act deviating from the territory of the Republic of Korea under the sovereignty of the Republic of Korea. The reasons are specified below.

In light of the legislative purpose of the National Security Act, it is reasonable to view escape under Article 6(1) and (2) of the National Security Act to refer to the act of escaping from South Korea where the so-called territorial jurisdiction of the Republic of Korea is practically exercised, and the so-called territory of the Republic of Korea is practically exercised, in view of the situation where the existence, safety, and continuity of the Republic of Korea is guaranteed, and the existence, security, and continuity of the Republic of Korea is ensured, the preservation of the Korean Peninsula and its attached islands, and securing effective control over them, and thus, it is reasonable to view escape under Article 6(1) and (2) of the National Security Act.

The majority opinion argues that the act of a citizen of the Republic of Korea to leave from the status of so-called personal seal rights and in which it is difficult to exercise his/her personal seal rights also constitutes escape as referred to in each of the above provisions, but it is difficult to agree.

Above all, while the so-called territorial jurisdiction over South Korea over South Korea is an effective control that is exercised in reality, directly and specifically through the state agencies, systems, and laws and regulations, with respect to citizens of the Republic of Korea residing in a foreign country, the control by the territorial jurisdiction of that foreign country is effectively and effectively over them, and the so-called personal jurisdiction of the Republic of Korea over them is only an abstract and conceptual control that may be exercised indirectly through diplomatic relations, etc. between the relevant country and the Republic of Korea, and it is difficult to treat them equally. In particular, the so-called personal jurisdiction of the Republic of Korea over a national residing in a country where a close cooperative relationship is not formed through an international organization or treaty, etc. is too conceptually conceptually and practically, and it may be difficult to perform no meaning or entirely. Therefore, establishing the so-called type of escape from the personal jurisdiction of the Republic of Korea as a general and abstract concept of escape from the personal jurisdiction of the Republic of Korea is not likely to be different from

In addition, regardless of the fact that the act of leaving South Korea's territory, which is practically exercising the so-called territorial sovereignty of the Republic of Korea, is insufficient to be deemed to be deviating from the sovereignty or governing power of the Republic of Korea in the procedural aspect or from the perception of the actor, it is difficult to view that the act of a citizen residing in a foreign country, which goes beyond the sovereignty or governing power of the Republic of Korea, is nothing more abstract and conceptually abstract and conceptually and it is difficult to view it as escaping from the sovereignty or governing power of the Republic of Korea as well as from the perspective of the actor's perception. Therefore, if it is deemed that the act of a citizen residing in a foreign country, who enters an area where the personal sovereignty is practically difficult to exercise the personal sovereignty, can constitute escape under Article 6 (1) and (2) of the National Security Act, it is difficult for the citizen residing in the foreign country to specifically identify what act would be punished as deviating from the personal sovereignty of the Republic of Korea.

Article 1 (2) of the National Security Act provides that "In interpreting and applying this Act, it shall be limited to the minimum necessary to achieve the purpose of paragraph (1) in interpreting and applying this Act, and it shall not be permitted to expand or interpret it, or to unreasonably restrict the fundamental human rights of the people guaranteed by the Constitution." Thus, the strict boundary of unreasonable interpretation and application of punishment provisions under the National Security Act is concerned. Thus, it shall be sufficiently careful in interpreting the concept of escape under Article 6 (1) and (2) of the National Security Act.

Meanwhile, while the majority opinion argues that escape under Article 6 (1) and (2) of the National Security Act means an act deviating from the sovereignty or governing power of the Republic of Korea, the majority opinion actually commits contradictions recognized as escape even if it is not an act deviating from the sovereignty or governing power of the Republic of Korea. In other words, the majority opinion recognizes that a citizen of the Republic of Korea has escape from the territory or governing power of the Republic of Korea, but in such a case, the so-called personal seal of the Republic of Korea still exists without any change, and it is difficult to deem that the above act constitutes an act deviating from the sovereignty or governing power of the Republic of Korea. In essence, the personal seal of the Republic of Korea is extended to a citizen of the Republic of Korea residing in the territory or governing power of the Republic of Korea, including all areas practically under the sovereignty and governing power of the Republic of Korea. Even if the Republic of Korea remains in the territory and governing power of the Republic of Korea, so long as it still remains in the territory and governing power of the Republic of Korea, it cannot be viewed as exceeding the sovereignty or governing power of the Republic of Korea.

Furthermore, according to the Majority Opinion, it is anticipated that the concept of escape under Article 6(1) and (2) of the National Security Act is different between a person who has acquired the nationality of the Republic of Korea and a citizen of the Republic of Korea who resides in a foreign country with the status of stay, such as the permanent sovereignty, and the punishment would result in a significant difference in its punishment. It is difficult to understand it as it is excessively different without any justifiable reason because it does not have any specific difference in essence.

Therefore, it is reasonable to view that the act of an actor residing outside the territory of the Republic of Korea and entering into the area governed by anti-government organization does not constitute escape under Article 6(1) and (2) of the National Security Act, regardless of whether the actor is a citizen of the Republic of Korea or not.

Unlike this, Supreme Court en banc Decision 97Do2021 delivered on November 20, 1997, which held that the act of a person residing outside the territory of the Republic of Korea entering into an area under the control of an anti-government organization shall be deemed to constitute escape under Article 6 (1) and (2) of the National Security Act, regardless of whether the person is a citizen of the Republic of Korea or not, shall be modified to the extent inconsistent with the above opinion.

Ultimately, the defendant living in Germany in this case's act of visiting North Korea five times from May 191 to March 12, 1994 in response to the invitation of North Korea cannot be included in the concept of escape under Article 6 (2) of the National Security Act regardless of the fact that the defendant's nationality was changed to Germany in the middle of that act. The above visiting act is included in the concept of escape under Article 6 (2) of the same Act, and the judgment below cannot be maintained as it is in violation of the misapprehension of legal principles as to escape concept.

Therefore, among the judgment below, the part of conviction of violation of the National Security Act due to the defendant's visit to North Korea cannot be exempted from reversal without considering the remaining grounds for appeal by the defendant, and the majority opinion's conclusion that this part should be reversed is consistent with the majority opinion, but as seen above, I express my separate opinion because it differs from the reasons for reversal.

5. Concurring Opinion by Justice Park Si-hwan on the conviction of violation of the National Security Act due to visit to North Korea

A. The concept of "escape" under Article 6 (1) and (2) of the National Security Act

First of all, with regard to the meaning of "escape" under Article 6 (1) and (2) of the National Security Act, this means only the act of escaping from the area practically affected by the sovereignty of the Republic of Korea, and does not include any act deviating from the territory of the Republic of Korea, and therefore, it does not constitute "escape" under Article 6 (1) and (2) of the National Security Act, and the act of residing outside the territory of the Republic of Korea and entering into the area governed by anti-government organization does not constitute "escape" under Article 6 (1) and (2)

Article 6 (1) of the National Security Act provides that an act of escape to an area under the control of an anti-government organization shall be punished with the knowledge that it may endanger the existence and security of the State or democratic fundamental order, and Article 6 (2) of the National Security Act provides that an act of escape to an area under the control of an anti-government organization is subject to punishment.

The concept of escape stipulated in Paragraph (1) as "a person who has escaped to an area under the control of an anti-government organization" while Paragraph (2) provides that "a person who has escaped to an area under the control of an anti-government organization" shall be deemed as "a person who has escaped to an area under the control of an anti-government organization," and it is unclear whether the "escape" in paragraphs (1) and (2) shall be deemed as the same concept or as another concept. The majority opinion does not regard this as "ese the meaning of the above two escape." The escape in Paragraph (1) shall be interpreted as "an act entering an area under the control of an anti-government organization directly or through a foreign country after departing from the area under the control of an anti-government organization." On the other hand, escape in Paragraph (2) includes "an act of departing from the area under the control of an anti-government organization, other than the governing act in Paragraph (1) as mentioned in the law, which actually constitutes an escape from the territory of the Republic of Korea."

However, such interpretation of the Majority Opinion is prohibited. Article 6(1) of the National Security Act provides that “An act of diving or escape from an area under the control of an anti-government organization is subject to punishment.” Paragraph 2 of the same Article provides that “an act of diving or escape to receive an order from, or to consult with, an anti-government organization.” Thus, Article 6(2) provides that “an act of an anti-government organization or its members shall be subject to punishment.” Article 6(9) of the National Security Act provides that “An act of an anti-government organization or its members shall be subject to punishment.” Article 6(2) of the same Act provides that an act of an anti-government organization shall be subject to punishment if a certain purpose is added as a basic element of an offense under paragraph (1) of the same Article, and the meaning of “e.g., escape” under paragraph (2) of the same Article is not different from that of an anti-government organization. It is naturally related to the existence and fundamental order of the Constitutional Court without any provision of Article 9(2) of the National Security Act.

Therefore, it shall be interpreted that the escape or escape under Article 6(2) can be punished only when there is a danger. However, the reason that Article 6(2) does not stipulate the elements of the danger is also an element of the crime under Article 6(2) and the reason that Article 6(2) does not stipulate the elements of the danger is also an element of the crime under Article 6(1). In addition, the strict interpretation is in line with the purport of Article 1(2) of the National Security Act that provides that it shall be limited to the minimum necessary for the application of the National Security Act, and that it shall not be extended or expanded or that it shall not unreasonably restrict fundamental human rights.

As such, Article 6(2) of the National Security Act is deemed to be a provision that only provides for aggravated punishment of purpose criminals while punishing the act of diving or escape identical to the elements of Article 6(1). If so, the concept of "escape" under paragraph (2) is the same as "escape" under paragraph (1), and it should be deemed that only the act that satisfies the requirements of "escape to an area under the control of an anti-government organization" under paragraph (1) can be subject to punishment under paragraph (2). In this regard, the interpretation of the majority opinion that the act of escape from the area where the sovereignty of the Republic of Korea is practically under the sovereignty of the Republic of Korea is established as a crime of escape under paragraph (2) is not acceptable, and that the Supreme Court en banc Decision 97Do2021 Decided November 20, 197, etc., which held with the majority opinion, should be modified to the extent inconsistent with the above opinion.

B. Whether the defendant's visit to North Korea is dangerous

(1) Although Article 6(2) of the National Security Act does not explicitly stipulate the elements of danger, such as “the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order,” it shall be interpreted that only the requirements for aggravated punishment are prescribed based on the premise that the elements of danger as stipulated in paragraph (1) are followed by this paragraph (2). As such, the crime of escape under paragraph (2) of the same Article can be punished only where it is deemed that there is a danger.

(2) The majority opinion held that there is no error in the misapprehension of legal principles in the judgment of the court below that found the defendant guilty on the ground that there is a clear risk that the defendant's act of visiting North Korea four times between May 191 and March 193, 191, prior to the loss of the nationality of the Republic of Korea, and of cooperating with the maintenance and continuation of the North Korean system, C, etc. and others, may harm the national existence and security or democratic fundamental order

However, we cannot agree with the majority opinion that there is a risk to the extent required by the National Security Act to visit North Korea by the defendant.

(3) First of all, it is necessary to examine the meaning and degree of danger that the National Security Act requires as a constituent element to punish an act related to an anti-government organization.

Every person may have his own idea, and express it externally with a belief that his idea is correct, and there is a right to persuade others to have the same idea as that of his own, and further to have his own idea realized by transferring his own idea to his act. It is an innate and innate desire that the human being is an animal that thought before the right is granted. However, it is natural that the idea of the people cannot be the same as all, and it is too natural that there is no different idea between each other, and it is too natural that there is a different idea with each other, and that it is not permissible in a human community to attack or restrict one other's idea that there is a different idea against another, and that it is not possible for people who have different thoughts to live together. The same holds true that even if there is an absolute majority in any idea, it is equivalent to the value of the idea of the minority, regardless of the majority's idea, and it is nothing more than an element that can change its idea to the majority and minority.

However, there is only an exception to impose restrictions on another person's thoughts. It is limited to inevitable cases where the idea is likely to cause any danger because it risks the community and its members. If it is possible to restrict a certain idea, what kind of danger may be required to be accompanied to a certain degree? People different from themselves cause fear and fear of fear. There are cases where there are grounds for apprehension and fear of fear. However, there are cases where there are no grounds for fear and fear of fear, but there are many cases where there are unfounded fear and fear of fear. However, even if there are many people who feel fear and fear of fear, without any basis for fear and fear of fear, it is more likely that many people are justified on the ground that those who feel fear of refusal and fear of fear are the majority, and that there is no possibility that many people are subject to restriction on the minority's thoughts, such as the need to be restricted to the minority's thoughts, and the minority's perception and the minority's tendency to be restricted in the past and the weak's danger are determined to be excessive.

Human beings have endeavored for long time to eliminate such imbalance and misappropriation applicable to ideas of the majority and minority, which are to be provided with equal value, and as a result, human beings have been able to regulate only when the idea is accompanied by clear and present danger. The principle is a principle that the thoughts of the minority and the minority can be regulated only when it is clearly recognized that the direct and significant risk actually exists, not by the flexible refusal and fear of the majority. However, even at this present where the validity of the principle is widely recognized, the majority and the classists do not constantly intend to keep the doubt about the danger of the minority and the weak's other thoughts, and as far as possible, do not suppress desire to regulate it by adding the danger of the minority and the weak.

Under these circumstances, we should establish more strict criteria for determining the risk, and in applying this, we should protect strongly the freedom of thought and expression in line with the desire and suspicion to suppress the minority and the weak.

From this point of view, the meaning and standard of danger, which is a requirement to regulate a person’s thoughts, should be summarized as follows: First, the danger should be clearly existing. Presumption with uncertain elements or several interpretations possible, and the idea of another person’s thoughts cannot be regulated as one of the constructive risks by granting them a meaningful meaning. Second, it is unreasonable to regulate all indirect causes connected to the danger by means of multiple stages of causations. It is unreasonable to regulate only the idea that is inevitable and directly connected to the danger. Third, the danger should be a high-speed danger. Whether one think is right and wrong or unreasonable, it is necessary to delete the conclusion following the process of comparison and discussion with other thoughts, and it is necessary to consider that it is difficult or unreasonable to view that it is necessary to take on the open market of ideas to the extent that it is not necessary to regulate the existing danger itself to the extent that it does not require an excessive restriction of free competition. Lastly, it is difficult to consider that it is an urgent need to regulate the existing danger in the free democracy itself, except for the cases where it is necessary to do so.

In addition, the strict interpretation of the restriction of freedom of thought and expression is also a part of the past in that the National Security Act has been abused and abused as a means of suppressing the level of political security or the critical forces, and the law has been implemented in an unreasonable manner by the excessive desire of the agency in charge of public security, thereby infringing on the human rights of the people, and thus infringing on the human rights of the people, and at the same time again, infringing on the fundamental rights of the people, which are the core of the liberal democratic fundamental order, and infringing on the clear division from the past so as not to reconcilate such a challenge. Therefore, a number of Supreme Court decisions that found guilty by presenting or alleviated standards different from the above strict standards as to the criteria and meaning of danger under the National Security Act should be modified.

(4) We examine whether the Defendant’s act of visiting North Korea of this case satisfies the risk requirements required under the National Security Act.

Based on the facts established by the court below, if the defendant summarizes the acts related to the escape of this part of the defendant based on the facts established by the court below, the defendant was found guilty on four occasions between May 191 and March 193 (the majority opinion found guilty in the judgment of the court below on March 12, 1994) and judged the defendant not guilty on the ground that the defendant had no Korean nationality at that time, so no further examination is required. However, in terms of the risk of the act, the same conclusion can be reached as follows. At first, the Korea Social Research Institute of North Korea, the Korea Institute of Shipbuilding, the Vice-Chairperson, etc. of the North Korean Association of Scientists, etc., were invited to enter North Korea, the defendant attended the academic conference on the main philosophy of North Korea, attended the academic conference, heard or received materials about the subject of North Korea's lectures or learning, interview with the executive officers at that time, etc. at that time, the defendant did not have any specific difference with the North Korean government's entrance to the North Korean government, and then returned to Germany.

위와 같은 행위를 하기 위하여, 또는 그런 행위들에 대한 지시나 요청을 받고 북한을 방문한 피고인의 행위에 국가보안법에서 요구하는 위험성이 있는지를 보면, 우선 앞에서 말한 바와 같이 사상 그 자체는 아무리 위험성을 내포한 것이라 하더라도 절대적 자유의 영역에 속하는 것이므로 사상의 내용 그 자체의 위험성을 이유로 이를 제한할 수 없는 것이고, 그 사상을 있는 그대로 외부로 표출만 하는 행위 역시 마찬가지라는 점은 앞에서 말한 바와 같다. 피고인이 한 행위를 한마디로 요약하면, 피고인이 친북사상을 가졌다고 가정하더라도 피고인은 학자로서 자신이 가진 친북사상이나 주체사상 등에 관하여 같은 생각을 가진 북한 내의 학자들과 모여 서로 생각을 나누고 토론을 하고 그 사상을 학습하는 행위와 이에 부수되는 행위를 하였다는 것에 불과하다. 통상 어떤 위험한 생각을 가진 사람들이라 하더라도 같은 생각을 갖고 있는 사람들끼리 모여 자신들의 생각을 나누고 토론하고 학습한다고 하여 새삼스럽게 위험이 더 발생하거나 그 위험성의 강도가 크게 변한다고 볼 수는 없다. 경우에 따라서는 각자가 개별적으로 또는 소수의 사람들이 함께 가지고 있던 위험한 생각을 다수가 모여 확인하고 공감대를 넒혀 감으로써 위험성이 현저히 증가하게 되는 일이 있을 수는 있을 것이다. 그러나 그러한 경우에도 그 위험한 생각을 서로 나누는 단계를 넘어서서 생각의 실현으로 위험성이 현실화되는 단계에까지 이르지 않는다면 역시 위에서 말한 정도의 위험성이 있다고 말할 수는 없을 것이며, 이 사건에서 피고인 등이 토론하고 학습하였다는 친북사상이나 주체사상은 이미 북한 지역에서 지배사상으로 지위를 확보하고 있는 생각으로서 피고인 등의 토론과 학습으로 인하여 비로소 그 세가 넓혀졌다거나 강화되었다고 볼 여지가 없다. 그리고 그 토론과 학습이 이루어진 곳이 학자들이 모인 학술토론회의 성격 정도에 그친 경우에는 더욱 그러하다. 앞에서 말한 것처럼 누구나 자기 생각을 외부로 나타내고 같은 생각을 가진 사람들끼리 모여 생각을 나누고 그 생각을 더욱 심화시켜 가고 싶은 것은 당연한 욕구이고, 사상의 자유로부터 자연스럽게 도출되는 권리이다. 그에 따른 행위가 특별히 별도의 위험을 새로 유발하거나 본래 그 사상이 갖고 있는 위험성을 크게 강화시키는 예외적인 사정이 없는 한 그러한 행위는 사상의 자유 자체가 갖고 있는 불가침의 영역에 놓아두어야 한다. 다수자가 소수자의 사상이나 생각이 마음에 들지 않는다고 하여 소수자들이 자기들 생각을 외부로 표현하고 소수자들끼리 모여 자기들 생각을 이야기 나누는 것 자체마저 막을 수는 없다. 더구나 피고인의 이 사건 행위는 그러한 생각이 지배하고 있는 영역인 북한 내의 지역에서 일어난 일이다. 그러한 생각이 지배하고 있는 영역 내에서 그러한 생각을 가진 사람들이 모여 그 생각들을 나누고 토론하고 학습하였다고 하여 그 영역 외부에 대하여까지 새삼스럽게 현실적인 위험을 따로 더 발생시키지는 않을 것이다. 그들이 실제로 나눈 학습의 내용도 주체사상 등의 본래 내용의 범주를 벗어나지는 않은 것으로 보이고 종전과 달리 특별히 위험성을 가중시키는 새로운 내용을 추가하거나 새로운 시도나 계획 등이 포함되어 있다고 볼 자료가 없다.

(5) Ultimately, the Defendant’s act in this case is merely an act of entering and studying a society in which the Defendant sought the same ideology as his own good mind. Our society does not think that it is so imminent or vulnerable that our society does not think that it is so far as it ought to prevent the idea from being in accordance with one’s good mind. It is time for our society to take a more mature and extra attitude in the respect of freedom of ideas.

C. As to the unconstitutionality of the National Security Act

The majority opinion states that Article 6 (2) of the National Security Act can be interpreted constitutional and is punished only when there is a clear danger that may harm the national existence and security or democratic fundamental order. Thus, the above provision does not violate the Constitution, while the defendant's act of North Korea in this case is an act in cooperation with the maintenance and existence of the North Korean system, and such act is deemed as an act in danger

In the Constitutional Court Order 89Hun-Ga113 delivered on April 2, 1990 on Article 7 (1) and (5) of the National Security Act, the Constitutional Court decided to limit the unconstitutional elements such as the lack of clarity in penal provisions, violation of the principle of no punishment without law, violation of the freedom of speech and publication, the essential violation of the freedom of science and arts, arbitrary selection and enforcement of law, violation of the equality right which enables arbitrary selection and enforcement, and violation of Article 4 (1) of the Constitution and the provisions of peaceful unification under Article 4 (1) of the Constitution. However, if interpreted as applicable only to cases where there is an obvious danger that may cause substantial harm to the national existence and security or democratic fundamental order, the Constitutional Court decided to limit the unconstitutionality (the above Constitutional Court decision presented the "clear and present danger" on the basis of substantial harm to the national existence and security or democratic fundamental order. The National Security Act was almost amended as of May 31, 191, and the National Security Act was established in many cases where it is clear that there is a considerable danger or risk of action after prosecution."

However, while the Constitutional Court recognizes that there are many unconstitutional elements regarding various provisions of the National Security Act, it did not make a decision of unconstitutionality that entirely invalidates the same, the reason why the Constitutional Court made a decision of limited constitutionality was premised on the premise that the National Security Act should be interpreted in a limited manner according to strict standards so as not to infringe on the freedom of thought, science, arts, and expression, and even though the Supreme Court accepted such purport, the actual application of the National Security Act does not seem to have any significant change compared to the previous precedents even after the decision of the above Constitutional Court and amendment

As the above decision of the Constitutional Court and the opposing opinions of the Supreme Court en banc Decision 90Do2033 delivered on March 31, 1992 properly pointed out, the freedom and fundamental rights of the people are in essence infringed unless the elements of risks added as a requirement under the amended National Security Act are strictly interpreted, and there is a risk of serious damage to the freedom of ideas which are the basis of the liberal democracy system, the investigation agency and the prosecutor are indicted of the suspicion of violation of the National Security Act in accordance with the previous and the standards without any difference between the previous and the previous, and the court also has a possibility to transfer North Korea as a result of without any difference between the previous and the previous, and there is a risk sufficient to limit the freedom of ideas if there is an incomplete intention to do so. While the Supreme Court has presented the standard for "a clear danger that may actually cause actual harm," the Supreme Court has continued to find guilty only with the presumed danger or simple probability, and eventually, the amendment of the National Security Act seems to be a requirement that could not function as a practical danger.

If our court continues to maintain the position of recognizing danger by applying the criteria before and after the amendment of the National Security Act to the person who violated the National Security Act, and the majority opinion also considers that the act that does not reach the degree of clear and present danger is dangerous and cannot avoid the application of the National Security Act, the current provision of the National Security Act that demands the punishment for such act is still not to eliminate the elements of unconstitutionality, and as such, the National Security Act that did not remove the unconstitutional elements should be repealed or fundamentally amended. It is reasonable that the court would again make a request for adjudication on the unconstitutionality of the provision of the National Security Act once again.

D. In conclusion, in this case, the defendant's act of entering North Korea while residing in Germany, which is not the territory of the Republic of Korea, does not constitute "escape" under Article 6 (2) of the National Security Act, and it is difficult to recognize that the defendant visited North Korea to the extent that it is in danger of meeting the constitutional interpretation standards, and therefore, the defendant's act of North Korea entering North Korea to do such act is also an act dangerous to the existence and security of the State and democratic fundamental order. Thus, if it is based on the interpretation of the majority opinion as to the criteria of danger, the defendant's act of North Korea should be acquitted as a whole, and if it is based on the interpretation of the majority opinion as to the criteria of danger, the decision of the court below which found the defendant guilty cannot be maintained as it is in error

Therefore, I agree with the majority opinion that the guilty part of the judgment of the court below regarding the defendant's visit to North Korea should be reversed, but I agree with the dissenting opinion.

6. Concurrence with the Majority Opinion by Justice Kim Hwang-sik and Justice Park Ill-sook

The concept of escape under Article 6 (1) of the National Security Act and the concept of escape under Article 6 (2) of the same Act shall be interpreted differently, and the reasons therefor shall be stated as follows:

Above all, the same interpretation of the concept of escape under the above two provisions is clearly contrary to the language and text of Article 6 (1) and (2) of the National Security Act. In other words, Article 6 (1) of the National Security Act provides that "any person who has escaped from an area under the control of an anti-government organization, or escaped to such area with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, shall be punished by imprisonment for not more than ten years" and clearly states that only the act of escape to "area under the control of an anti-government organization" shall be an element of an act. Article 6 (2) provides that "any person who has escaped from or escaped to receive an order from, or consult with, an anti-government organization or a member thereof shall be punished by death, life or imprisonment for not less than five years." Thus, unlike Article 6 (1) provides that "any person who has escaped from or escaped to an area under the control of an anti-government organization shall be punished by imprisonment with prison labor, or imprisonment with prison labor for more than five years."

If the legislators intended to make the concept of escape under Article 6 (2) Item B of the National Security Act identical with the concept of escape under Article 6 (1) of the same Act, it is natural to understand that the meaning of escape under Article 6 (2) of the same Act was to clearly differ from that of paragraph (1) of the same Article, and to interpret the concept of escape under Article 6 (2) of the same Act as the concept of escape under Article 6 (1) of the same Act, even though the legislators simply and clearly stated that “any person who commits an act under paragraph (1) to receive or to receive an order from, or to consult with, an accomplishment of the purpose shall be punished by death, imprisonment for life, or imprisonment with prison labor for not less than five years.” It is unreasonable to interpret the concept of escape under Article 6 (2) of the same Act as the concept of escape under Article 6 (1) of the same Act to be more narrowly defined within the scope of separation of powers, which is beyond the scope of permission under Article 6 (2) of the same Act.

In addition, it is necessary to pay attention to the fact that Article 6 (2) of the National Security Act regulates the acts that are essentially more dangerous than Article 6 (1) of the same Act.

The act of escape to an area under the control of an anti-government organization, which is a constituent element of Article 6(1) of the National Security Act, does not essentially contain the risk of being subject to punishment under the National Security Act, unless it is combined with the subjective constituent element of “the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order.”

However, “escape to receive an order from, or consult an accomplishment of purpose with, an anti-government organization or a member thereof” as an element of Article 2(2) of the same Act refers to activities to achieve the purpose of, or cooperate with, an anti-government organization, i.e., activities which may endanger the existence and security of the Republic of Korea or democratic fundamental order, and thus, the act itself has a significant degree of risk of being subject to punishment under the National Security Act. As such, the act of escape with the purpose of Article 2(2) of the same Act requires a relatively wide regulation compared to the act of escape under Article 1(1) of the same Act which does not have such purpose. It is reasonable to understand that the act of escape with the purpose of Article 2(2) of the same Act does not have a separate subjective element of element of element of Article 2 of the same Act that “ knowingly, it is likely to endanger the existence and security of the State or democratic fundamental order.”

Furthermore, in the actual situation of the Korean Peninsula, those who act in concert with the purpose and activity of North Korea, which is an anti-government organization, enter into an area under the control of North Korea from the outside, and consult about the performance of the purpose has various obstacles in reality. Accordingly, North Korea has frequently used the method of delivering an order or negotiating the performance of the purpose to conceal the activities that may endanger the existence and security of the Republic of Korea or democratic fundamental order by in contact with them in neighboring countries, such as Japan and China. Thus, it seems that Article 6 (2) of the National Security Act has made it clear that the legislative intent would be punished even for escape of the above purpose by establishing the concept of escape more broadly than that of Article 6 (1) of the National Security Act.

Therefore, it is reasonable to interpret that the concept of escape under Article 6 (2) of the National Security Act is distinguishable from the concept of escape under Article 6 (1) that restricts the destination to "area under the control of an anti-government organization" in view of the language and text.

Chief Justice Lee Yong-chul (Presiding Justice)