Relationship between the espionage and the espionage under Article 98 of the Criminal Act, and Article 13 of the Military Criminal Act

It is erroneous in the failure to determine the assertion on mitigation or exemption of punishment falling under Article 13 of the former National Security Act (Act No. 549 of Jun. 10, 60).

Article 13 (2) of the National Security Act, Article 323 (2) of the Criminal Procedure Act

Defendant

Attorney Kim Hong-hoon

Seoul High Court Decision 66No33 delivered on May 31, 1966

The original judgment is reversed and the case is remanded to the Seoul High Court.

Judgment as to the defendant's ground of appeal (1) (4)

Article 13 (2) of the National Security Act provides that the punishment shall be mitigated or exempted when an accused files an accusation against a person who committed or attempted to commit a crime under this Act. Thus, if the draft falls under this provision, it must be reduced or exempted, and if there is a statement of fact that is the reason for the reduction or exemption of punishment in accordance with Article 323 (2) of the Criminal Procedure Act. According to the records, the accused and the defense counsel have filed a voluntary accusation with the investigative agency of the series of co-offenders related to the defendant's crime and the other 1 and 8 who are related to the defendant's crime in the time when the defendant is arrested in the court of original trial and the investigation agency makes a statement of fact that is the reason for the reduction or exemption of punishment, and thus, they shall receive benefits from the reduction or exemption of punishment under Article 13 (2) of the National Security Act. Thus, the court below should have deliberated and explicitly made a judgment in accordance with the above statutory provisions, but it does not obtain the legal principles on the grounds for the reduction or exemption of punishment.

Judgment ex officio is made.

According to the records and the original judgment, the court below reversed the judgment of the court of first instance which sentenced ten years of imprisonment and ten years of qualification suspension against the defendant, on the ground that the amount of punishment is excessive, and sentenced seven years of imprisonment and five years of qualification suspension, the facts constituting the crime and evidence of the court of first instance which applied Article 369 of the Criminal Procedure Act, and Article 3 subparagraph 1 of the National Security Act, and Article 7 and Article 6 (1) of the same Act are applied to the attempted crime from illegal areas under Article 2 of the judgment of the court of first instance. In comparison with the facts cited by the court of first instance, the court below found that the defendant's request from the court of first instance was clearly affected by the anti-government organization (1) on July 18, 1963 and included in the non-indicted 5's order, and that the defendant's request from the court of first instance which did not have any effect on the anti-government organization's non-government organization's remaining after being sealed (6).

Therefore, the case shall be remanded to the original court in order to reverse the original judgment intending to make a decision on the remaining grounds of appeal and to have the original court re-examine the case. It is so decided as per Disposition by the assent of all participating judges.

Justices Han Sung-dong (Presiding Judge) of the Supreme Court