[1] Whether Article 3 of the former Inter-Korean Exchange and Cooperation Act includes the National Security Act in the "other Acts" that takes precedence over the same Act (affirmative), and the requirements and criteria for determining whether the former Inter-Korean Exchange and Cooperation Act takes precedence over other Acts

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

[3] Requirements for establishing "a crime of offering convenience" under Article 9 (2) of the National Security Act

[4] Requirements and criteria for establishing "crimes of assembly, communication, etc." under Article 8 (1) of the National Security Act

[5] Requirements for establishment of "moral activity" under Article 7 (1) of the National Security Act

[1] Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005) and Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357 of January 30, 2009) / [2] Article 4 (1) 2 (b) of the National Security Act / [3] Article 9 (2) of the National Security Act / [4] Article 8 (1) of the National Security Act / [5] Article 7 (1) of the National Security Act

[1] [4] Supreme Court en banc Decision 2003Do758 Decided April 17, 2008 (Gong2008Sang, 718) / [1] Supreme Court Decision 2009Do9152 Decided July 28, 2011 (Gong201Ha, 1870) / [2/4] Supreme Court Decision 2009Do320 Decided October 13, 201 / [2/4/5] Supreme Court Decision 2011Do9094 Decided October 13, 201 / [2] Supreme Court Decision 2000Do5442 Decided June 24, 2003 (Gong203Ha, 1646) / [45] Supreme Court Decision 2009Do20969 Decided September 26, 2003

Defendant

Defendant and Prosecutor

Attorney Kim J-jin

Seoul Central District Court Decision 2010No827 Decided April 28, 2010

The part of the judgment of the court below that acquitted the guilty portion and obscenity portion is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecutor's appeal as to communication contact on February 2009 is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Part of the misapprehension of legal principles as to the recognition of exchange purpose and burden of proof

Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005) provides that "this Act shall take precedence over other Acts to the extent that it is deemed justifiable with respect to activities aimed at the communication, trade, cooperation, provision of telecommunications services, etc. with South Korea and North Korea for the purpose of inter-Korean exchange and cooperation." Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357 of January 30, 2009) provides that "the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357 of January 30, 2009) shall apply to activities for the purpose of inter-Korean exchange and cooperation, such as the communication, contact, trade, cooperation, provision of telecommunications services, etc. with South Korea and North Korea, within the scope of the purpose of this Act."

Article 3(a) of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 850, Apr. 17, 2008) includes the National Security Act. However, in order to preferentially apply, the act of having contact with residents of North Korea by means of meetings, communications or other means must be deemed to be justifiable or within the scope of the purpose of the above Act as “act for inter-Korean exchange and cooperation.” Whether it constitutes such act should be objectively determined by comprehensively taking into account the circumstances leading up to such act, whether a report was made as prescribed by the above Act, and the conduct before and after such act (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008; Supreme Court Decision 2009Do9152, Jul. 28, 2011).

In addition, the National Security Act aimed at securing the security of the State and the survival and freedom of citizens by regulating anti-state activities that may endanger the national security cannot be deemed to violate the Constitution (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008). Thus, the argument that the National Security Act is unconstitutional cannot be accepted.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination that the Defendant’s act of entering the instant facts charged did not constitute an act for the purpose of inter-Korean exchange and cooperation under Article 3 of the former Inter-Korean Exchange and Cooperation Act, based on the same legal doctrine, is in accordance with the foregoing. As so alleged in the ground of appeal, the lower court did not err by misapprehending the principle of equality under the Constitution or the principle of excessive prohibition, or by misapprehending the legal doctrine

B. Part of the misapprehension of the legal principles as to the risk and the subject and scope of recognition with incomplete negligence

(1) Violation of the National Security Act (Offer of Convenience)

Article 4 (1) 2 (b) of the National Security Act provides that any confidential information provided for in Article 4 (1) 2 (b) of the National Security Act shall be the facts, goods, or knowledge beneficial to, or not verified as confidential to, anti-government organizations with respect to each face-to-face, such as politics, economy, society, culture, etc., and such information must not belong to the facts, goods, or knowledge widely known to the general public through lawful procedures, etc. in Korea. In addition, if disclosed, it shall have substantial value to protect the public as it threatens to pose a risk to the national safety (see, e.g., Supreme Court Decision 200Do5442, Jun. 24, 2003): Provided, That the issue of whether it was publicly notified shall be determined by considering various circumstances such as the degree of development of mass media and means of communication such as newspapers, the scope of reading and listening, and the subject of publication, etc.; if disclosed, whether it actually pose a risk of disclosure, it shall be determined by one anti-government organization and one of the public interests at the time.

Meanwhile, the crime of offering convenience under Article 9(2) of the National Security Act is established when the other party to the provision of convenience provides money, goods, or other property benefits, or provides a place for diving, meeting, communication, or liaison, or provides convenience by other means, knowing that he/she is a person who commits or intends to commit a crime under Articles 3 through 8 of the same Act, even though he/she is aware of the fact that he/she is a person who commits or is to commit a crime under Articles 3 through 8 of the National Security Act. Here, it is sufficient that the other party to the provision of convenience does not have to

In light of the facts acknowledged by the evidence adopted, the lower court determined that the Defendant’s provision of Nonindicted Party 1’s passport, etc. to Nonindicted Party 1 constitutes an act of convenience provision under Article 9(2) of the National Security Act, on the grounds that it was known that Nonindicted Party 1 was a member of an anti-government organization, who was aware of, or at least did not have been aware of, the fact that the Defendant was a member of an anti-government organization.

Examining the reasoning of the judgment below in light of the above legal principles, the court below did not err by misapprehending the legal principles as to the interpretation of national secrets and their collection, or as otherwise alleged in the ground of appeal, the scope of the person who seeks to detect and collect national secrets, or by misapprehending the legal principles as to the scope and interpretation

(2) Violation of each National Security Act (excluding the part not guilty)

The crime of meeting, communication, etc. under Article 8 (1) of the National Security Act is established when, with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, contact with a member of an anti-government organization or a person under its order by means of meeting, communication, or any other means, and the act of meeting, etc. is obviously dangerous to the existence and security of the State or democratic fundamental order (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008). Meanwhile, whether an actor was aware of such a fact should be objectively determined by taking into account the developments leading up to the meeting, communication, etc., contact, contents of conversation and contact, and the situation before and after the meeting, etc., and such recognition shall be sufficiently sufficient if there is an incomplete recognition that the act may endanger or endanger the national existence and security or democratic basic order (see, e.g., Supreme Court Decision 200Do319, Apr. 16, 2003).

The lower court rejected the Defendant’s assertion on the grounds of appeal that the Defendant did not know of the fact that “the existence and security of the State or democratic fundamental order is endangered” with respect to the facts charged against the violation of the National Security Act (convening, communications, etc.), based on the fact that the Defendant collected materials related to the trends of the Republic of Korea at the second South-North summit as shown in the judgment of the first instance court and sent them by e-mail to Nonindicted 1, who is the cause of anti-North Korea. However, collecting materials on the Marine Corps and sending them to Nonindicted 1 by e-mail, the Defendant, who is a national of the Republic of Korea, who is well aware of the internal circumstances of the Republic of Korea, collected materials pertaining to the politics, diplomacy, military affairs, etc. of the Republic of Korea, constitutes an act that may endanger the existence and security

In determining that the above measures by the court below constitute an act dangerous to the existence and security of the Republic of Korea or democratic fundamental order, and at the same time, it appears to the purport of rejecting the defendant's assertion disputing such action on the premise of the judgment on the existence of awareness about such an act by the defendant. In light of the evidence duly admitted, the above conclusion of the court below is consistent with the aforementioned legal principles, and there is no error of law by misapprehending the legal principles as to recognition of danger dangerous to free democratic fundamental order, or by omitting judgment, which affected the conclusion of the judgment, as otherwise

C. The portion of unfair sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot

2. As to the Prosecutor’s Grounds of Appeal

A. Communications point on February 2009

The principle of interpretation 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 the free democratic fundamental order, is also applicable to crimes, such as meetings and communications prescribed in Article 8 of the National Security Act (see, e.g., Supreme Court Decisions 2009Do9152, Jul. 28, 201; 2009Do320, Oct. 13, 201).

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment below that held that the act of communications liaison on February 2, 2009 does not have a clear danger that may cause substantial harm to the national existence and security or democratic fundamental order is not erroneous in the misapprehension of legal principles as to the clear danger that may cause harm to the national existence and security or democratic fundamental order, as otherwise alleged in the ground of appeal.

B. Points of Morocity

The crime of obscenity under Article 7(1) of the National Security Act is established when an anti-government organization or a member thereof or a person who was ordered to do so, while knowing that such act may endanger the existence and security of the State or democratic fundamental order. Even if there were other purposes, an anti-government organization’s abuse of it as an internal disturbance, etc. is also likely to endanger the existence and security of the Republic of Korea or democratic fundamental order (see, e.g., Supreme Court Decisions 2001Do2209, Sept. 26, 2003; 201Do9094, Oct. 13, 2011).

According to the evidence duly admitted, the Defendant committed the crime of violation of the National Security Act (or provision of convenience) with respect to Nonindicted 1, a member of an anti-government organization, on September 2005, by providing Nonindicted 2 with the passport issued in the name of the Republic of Korea on September 2005 and the passport 1, etc. on November 2006, in which the domestic precision map was recorded, as a member of an anti-government organization, as the staff member of the North Korean Embassy stationed in the Republic of Korea, as stated in the judgment of the court below. On January 2007, Nonindicted 1 prepared a pro-Japanese box of Kim Jong-il using a computer and sent it by e-mail to Nonindicted 1. After that, the Defendant continuously committed the crime of violation of the National Security Act (e.g., provision of convenience, meeting, communications) with respect to Nonindicted 1 in 209, while the Defendant in the above letter includes the fact that he prepared for the future of the People's length to come to the direction of audit.

If the facts such as the above letter's contents are the same as above, in light of the legal principles as seen earlier, although the above letter takes the form of a lifetime, it is desirable to turn out the Kim Jong-il system and the policy direction including the unification route presented and promoted by it, and actively follow it. Thus, it is reasonable to view that the Defendant's act of preparing and transmitting the above letter's letter's letter's letter's letter's communication is merely an active and direct method beyond ordinary and social dimension, and it constitutes an act of harming the existence and safety of the country or democratic fundamental order, even if it is evident danger that the act is likely to endanger the nation's existence and security or democratic basic order.

Nevertheless, the lower court determined otherwise, that the Defendant’s act was merely a courtesy and did not have any apparent danger, and thus, there was an error of misapprehending the legal doctrine regarding the obscenity under Article 7(1) of the National Security Act, in so determining.

Meanwhile, Supreme Court Decision 2004Do4899 Decided April 17, 2008 cited by the court below is inappropriate to be invoked in the instant case, unlike the instant case.

C. The guilty part

The prosecutor also appealed the guilty portion of the judgment of the court below, but did not submit the appellate brief on this part within the statutory period, and the appellate brief does not contain any indication in the grounds of appeal.

3. Scope of reversal

Some of the appellate court's convictions and part of the convictions, and both the defendant and the prosecutor filed an appeal against the judgment. However, the defendant's appeal against the guilty part is without merit and only the prosecutor's appeal against the acquittal part is with merit, and if the crime which the appellate court found guilty and the crime which found the acquittal are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the appellate court's convictions shall also be reversed (see Supreme Court Decision 2007Do2733, Feb. 12, 2009, etc.).

According to the above legal principles, in this case where the part of innocence as to obscenity in the judgment of the court below is not exempt from reversal, the part of conviction and the part of innocence in the judgment of the court below should be sentenced to a single sentence as to the whole in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the part of the judgment below

4. Conclusion

Therefore, the part of the judgment of the court below regarding the guilty portion and obscenity’s acquittal portion is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal on the communication liaison on February 2009 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)