Defendant

Defendant and Prosecutor

Kim Don-do

Law Firm Jeong (LLC, Attorneys Kim Jong-soo et al.)

Seoul Central District Court Decision 2009Kadan23 Decided June 4, 2009

1. The guilty portion of the judgment below shall be reversed.

A defendant shall be punished by imprisonment for one year and suspension of qualifications for a year.

Of the facts charged in the instant case, the violation of the National Security Act due to the preparation and conspiracy of escape, and the violation of the National Security Act due to the obscenity on November 2005 and November 16, 2007, respectively, shall be acquitted.

2. The prosecutor's appeal concerning the non-guilty portion of the judgment below is dismissed.

1. Summary of grounds for appeal by the defendant;

A. misunderstanding of facts or misunderstanding of legal principles

(1) Since North Korea is not an anti-government organization under the National Security Act, the facts charged in this case on the premise that it is not guilty.

(2) As to the escape, escape, attempted escape, and preparation and conspiracy of escape

㈎ 피고인은 국가보안법에 저촉되는 목적을 수행하거나 협의하기 위하여 방북한 것이 아니라 미국에 15년간 거주해온 영주권자로서 공개적으로 단순한 관광 목적으로 방북하여 관광만 하고 돌아왔고 자신의 방북이 대한민국의 존립·안전이나 자유민주적 기본질서를 해한다는 정을 알면서 방북한 것이 아니므로, 이 부분 공소사실에 대하여 국가보안법이 아닌 남북교류협력에 관한 법률이 적용되어야 하는바, 피고인은 2008. 봄경 영주권자의 경우 남북교류협력에 관한 법률에 따라 방북사실을 신고해야 한다는 점을 뒤늦게 알고 통일부에 신고하였으므로 이 부분 공소사실에 대하여 무죄가 선고되어야 한다.

㈏ 원심은 탈출 예비·음모의 점을 유죄로 인정하였으나, 피고인은 입북하기 위해 공소외 1을 통하여 2006. 5. 18. 이메일로 공소외 2에게 방북할 수 있도록 도움을 요청한 바 없고, 공소외 1이 공소외 2에게 위와 같이 방북할 수 있도록 도움을 요청하는 이메일을 보낸 사실을 전혀 알지 못하였으며, 공소외 1이 보낸 이메일의 기재만으로 이 부분 공소사실을 인정하기에 부족하므로, 탈출 예비·음모의 점은 범죄의 증명이 없어 무죄가 선고되어야 한다.

(3) As to the meeting and communication

이 사건 공소사실 중 ① 2004. 7.경 유엔 북한대표부 사무실에서 조길홍 참사와 회합의 점, ② 2007. 1.경 재미동포전국연합 창립 10주년 기념행사 만찬장에서 박길연 대사, 조길홍 참사와 회합의 점, ③ 2007. 5.경 뉴욕 소재 ‘코리아 팰리스’라는 상호의 한식당에서 공소외 1, 박길연 대사, 조길홍 참사와 회합의 점은, 피고인이 국가보안법에 저촉되는 목적으로 조길홍, 박길연, 공소외 1 등과 협의를 한 것이 아니라 단지 공개 행사에 참석하거나 식사를 하면서 인사말을 나누고 만찬사를 들은 것에 불과하므로 회합의 구성요건해당성이 없다.

(4) As to the Morocity and rubber

㈎ 2005. 11. 초순경 찬양·고무의 점

피고인은 공소외 3, 4, 5 등에게 재미동포전국연합에 가입하여 활동하고 있다고 말한 사실은 있으나, ‘6.25전쟁은 남침이 아니고 북침이다. 전쟁이 나면 적화통일이 될 테니 그때 후회하지 말고 나한테 잘 보여라. 남한은 북한의 선군정치의 덕을 톡톡히 보고 있다. 전쟁이 일어나면 3분의 1은 죽을 것이니 살고 싶으면 나한테 잘 보여라.’라는 말을 한 적이 없고, 이에 부합하는 유일한 증거는 공소외 3의 진술인바, 공소외 3은 피고인과 사이가 극도로 나빠져 피고인을 국가정보원에 고발한 자이고 피고인의 말을 들은 지 3년이 지난 후에 기억에 의해 내용을 재구성하여 진술하였으므로 그 진술에는 과장이나 왜곡 가능성이 매우 커 신빙성이 없는데도 원심은 공소외 3의 진술을 근거로 이 부분에 대하여 유죄를 인정한 잘못이 있다.

㈏ 2007. 11. 16. 찬양·고무의 점

Although the Defendant stated to Nonindicted 6 that he was in contact with North Korea and that he could feel human patriotism, the lower court erred by recognizing the Defendant guilty of this part on the grounds of Nonindicted 6’s statement, inasmuch as he did not say that “the Gim Jong and the North Korea senior citizens live in the peace, as he was given an opportunity.” The only evidence corresponding thereto is Nonindicted 6’s statement, and the only evidence corresponding thereto is Nonindicted 6’s statement, and Nonindicted 6 made a statement by organizing the contents of his memory after the lapse of one year from the Defendant’s oral statement, and thus, the lower court did not have credibility in that statement.

(5) As to possession of pro-enemy materials

원심은 피고인이 미국 켄터키주 소재 피고인의 주거지에서 이적표현물인 〈닻은 올랐다〉, 〈세기와 더불어〉를 소지하였다고 인정하였으나, 피고인은 〈닻은 올랐다〉를 소지하고 있는지 정확한 기억이 없고, 〈닻은 올랐다〉는 소설책, 〈세기와 더불어〉는 김일성의 회고록일 뿐 이적표현물이 아니다.

(6) Of the facts charged in the instant case, the part as indicated in paragraphs (2) through (5) above, which was found guilty in the lower court, is an individual act committed by the Defendant while living in a foreign country for a long time, and the Defendant was unaware of the fact that it may endanger the existence and security of the Republic of Korea or democratic fundamental order. This part of the charges cannot be deemed to have a clear danger that the existence and security of the Republic of Korea or democratic fundamental order may

B. Unreasonable sentencing

Considering the fact that the defendant is a primary offender, that his family and work are located in the United States as a permanent resident residing in the United States in the 15th year, and that the crime of this case is not organized or collective, but is only an individual act based on his personal inclination, the punishment of the court below (one year and six months of imprisonment, suspension of qualifications one year and six months) is too unreasonable.

2. Summary of grounds for appeal by a prosecutor;

A. Error of mistake

(1) On December 2005, as to communications due to telephone conversations with the United Nations Representative Cho Hong-ro on North Korea on the part of December 2005

Although there are high credibility in Nonindicted 3’s statement that the Defendant got from the phone call from the North Korean Representative, and that the Defendant had had an auditor on the smuggling while receiving the phone, the lower court found the Defendant not guilty on this part on the ground that it is insufficient to recognize that the Defendant had been given a telephone from Nonindicted 3 and Nonindicted 5’s statement that he transferred the above contents from Nonindicted 3 is insufficient.

(2) On April 2006, as to the meeting with Cho Ho-ri on April 2006

The Defendant acknowledged this part of the crime by the prosecution at the court of the court below that the Defendant made a statement in overlap with the Defendant on May 2007 at the court of the court below that the Defendant met (in this part, the Defendant was able to have been well aware of the Defendant on November 2005). However, the Defendant denied this part of the crime. However, it is difficult to view that the Defendant was under questioning on May 207, 207, after one year and six months from the date on which the Defendant was pushed-in, and it was difficult to view that he responded to this part of the crime. It was considerably different from the prosecutor’s statement at the prosecutor’s office that recognized the crime on April 2006 and May 207, since it was considerably different from the prosecutor’s statement that found the Defendant to have committed this part of the crime, and therefore, the court below found the Defendant not guilty.

B. Legal principles

(1) As to the praises after wearing the People’s Uniform

The Defendant’s excessive act of wearing the People’s Uniform bought at the time of the North Korea and showing pictures taken by the Defendant at the time of the North Korea, having a value that praises the North Korean system and embarrasating liberal democracy, and has an obvious risk of substantial harm to the liberal democratic basic order. However, the lower court erred by misapprehending that the Defendant’s above act did not constitute praise the anti-government organization’s activities, nor did it clearly pose a risk of substantial harm to the existence and security of the State or democratic basic order.

(2) As to the praises by supporting the Taekwondo model group in North Korea

Although the Defendant’s act of taking advantage of North Korea’s Taekwondo demonstration team in the Republic of Korea’s performance hall while aiding and aiding large artificial devices and accompanying with the demonstration team is not pure support, but praiseing the North Korean system centered on the principal ideology and the military politics, the lower court erred by misapprehending the duty of anti-government organizations, which is difficult to view that the Defendant engaged in aiding and abetting the human body while harming the human body, and by failing to deem that there is an obvious risk of substantial harm to the national existence and security or democratic fundamental order, and thereby not guilty of this part.

(3) As to the possession of pro-enemy contents due to possession of human air and Kim Il-sung's photograph

The court below acquitted the Defendant on this part, on the ground that the pictures of the human air and Kim Il-sung cannot be deemed as including active and aggressive contents threatening the existence and security of the Republic of Korea or the system of free democracy, because they represent the intent to construct the Maternity and Maternism of North Korea, and the defense against the one-person Domination system, etc., which are incompatible with the free democracy system.

(4) As to the possession of pro-enemy contents due to the possession of the Simlelight Madleblelight and the national sovereignty era in 2008

The term “clelelight fight and the era of national sovereignty” recognizes Korea as the colonial place of the United States in the same way as North Korea’s theory, and inciting the establishment of a fair book based on the principal ideology, thereby constituting a pro-enemy organization with an aggressive content threatening a free democracy system. However, the lower court erred by misapprehending the legal doctrine on this part, on the ground that this article cannot be deemed as an active and aggressive act threatening a free democracy system.

C. Unreasonable sentencing

As seen earlier, the lower court’s sentence should be re-determined since all of the facts charged that the lower court acquitted the Defendant, and considering the following: (a) the circumstances after the crime are extremely poor; (b) the risk of recidivism; (c) the need to strictly punish the Defendant at a general preventive level; and (d) the gravity of legal interests protected under the law, the lower court’s punishment is too uneasible.

3. Judgment on the defendant's assertion of mistake of facts or misapprehension of legal principles

A. As to the assertion that North Korea is not an anti-government organization

The principle of international peace and peaceful unification, which is declared by the Constitution, is premised on the premise that it does not prejudice the Daejeon of the Constitution of the Republic of Korea, which is the fundamental order of free democracy. However, North Korea is not in harmony with the basic principles of our Constitution at the present point of time, and it is hostile to the Constitution of the Republic of Korea and the Constitution of the Republic of Korea, and the final purpose of North Korea is to build a public-private partnership society in South Korea through the so-called "social democratization of South Korea and anti-Korean war" in order to achieve such objective of rational unification, and there is no indication of change in the course of carrying out policies. Accordingly, North Korea also has the character of anti-government organizations that establish a system of free democracy by taking advantage of conversations and cooperation for peaceful unification at the same time (see, e.g., Supreme Court en banc Decision 2008Do4284, Apr. 23, 2007; Supreme Court Decision 2008Do5304, Apr. 28, 2007).

B. As to the escape, escape, attempted escape, and preparation and conspiracy of escape

(1) Whether the Inter-Korean Exchange and Cooperation Act is applied

Article 3 of the former Inter-Korean Exchange and Cooperation Act, which was enforced when the defendant visited or attempted to visit North Korea, provides that "this Act shall take precedence over other Acts, to the extent deemed justifiable with respect to any act for the purpose of inter-Korean exchange and cooperation, such as the visit, trade and cooperation between South and North Korea, and the provision of communications services (amended by Act No. 7539 of May 31, 2005)," and "this Act shall apply to any act for the purpose of inter-Korean exchange and cooperation, such as the visit, contact, trade and cooperation with South and North Korea, and provision of communications services, within the scope of the purpose of this Act (amended by Act No. 8364 of April 11, 2007)" and it is reasonable to include the National Security Act before and after the visit and the issuance of the certificate for the purpose of inter-Korean exchange and cooperation (see, e.g., Supreme Court Decisions 90Do16139, Sep. 25, 1990; 209Do399.).

위 법리에 비추어 이 사건을 보건대, 피고인은 원심 법정에서 “내가 북한을 방문하고자 하였던 이유는 북조선 인민들이 존경하고 목숨 바쳐 모신다는 위대한 장군님, 민족의 태양이라고 칭송하는 김일성 주석에 대하여 알아보고, 북조선 사람들은 어떻게 굶어 죽어가면서도 사상과 정신을 잃지 않고 한 치 흐트러짐 없이 당당히 살아갈 수 있는가를 배우기 위해서였다.”라고 진술하였고, 검찰에서 “북한원전이나 이념서적 등에서 북한체제나 김일성 부자에 관하여 주장하고 있는 사상이나 이념에 대하여 직접 보고 듣고 느껴봐야 한다고 생각하여 방북을 결심하게 된 것이다.”라고 진술하였는바(공판기록 제894쪽 내지 제899쪽), 이러한 피고인의 진술 내용에 의하면 피고인이 북한을 방문한 것은 평소 우월하다고 생각하고 있는 북한 체제를 배우고, 존경하는 김일성 부자에 대하여 알아보기 위한 것이지 위 조항 소정의 남북교류와 협력을 위한 것이라고 볼 수는 없으므로, 피고인에게는 위 조항이 적용될 여지가 없다. 따라서 피고인의 이 부분 주장도 이유 없다.

(2) As to the preparation and conspiracy of escape

The defendant, through Non-Indicted 1, requests the investigative agency to confirm whether Non-Indicted 2 had the right to request the issuance of a visa from June 17, 2006 to the 24th of the same month, and there is no knowledge as to whether Non-Indicted 1 and Non-Indicted 2 had the right to request the issuance of an e-mail with respect to the visit schedule. Thus, the defendant's e-mail (Evidence No. 180 pages) sent to Non-Indicted 2 on May 18, 2006, which corresponds to this part of the facts charged, requested Non-Indicted 7 and 1 to confirm whether Non-Indicted 1 had the right to request the issuance of the visa from Non-Indicted 2 through the investigative agency, and the defendant's request for the issuance of the visa from June 17, 2006 to the 204th of the same month, and there is no possibility that Non-Indicted 1 and non-Indicted 2 could have the right to request the issuance of the e-mail to the defendant's 1 and the defendant's e-mail.

(c) As to meetings and communications:

The crime of meeting under Article 8 (1) of the National Security Act is established with the knowledge of the fact that the crime of meeting is beneficial to anti-government organizations, or with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, and is established upon meeting with its members or persons who have been ordered to do so. It does not require a prior joint intention between the meeting members, unless a meeting is a meeting under any different intention at all at a different level from courtesy and private level. It does not necessarily require a prior joint intention, but it does not necessarily require a discussion or decision on certain matters in the course of a series of activities for the accomplishment of purpose (see Supreme Court Decision 97Do1656 delivered on September 9, 197, etc.).

In light of the above legal principles, the following circumstances are acknowledged as follows: ① around September 2003, the Defendant continued to contact the instant case with Nonindicted 1, such as attending various events of the Republic of Korea, i.e., the World Cup Korea and Japan, providing support to North Korean players to participate in the World Cup games, and finding him as a lodging house; ② the Defendant was present at an investigation agency of the Republic of Korea and the Defendant’s organization of North Korea with North Korea, including North Korea, to provide education to those who are sloped in the Republic of Korea; to distribute materials about the principal ideology; to hold discussions; and to help North Korea, etc., after being informed of Nonindicted 1, the Defendant was present at various events of the Republic of Korea; and on November 2005, the Defendant continued to contact with Nonindicted 1, 2005, such as North Korea, by attending various events of the Republic of Korea-U.S. Union; ② the Defendant was urged to visit North Korea-U.S. government organizations in the course of its events; and ③ the Defendant’s participation in the two-U.

D. As to Morocity and rubber

(1) Criteria for determining Article 7(1) of the National Security Act

Article 7(1) of the National Security Act provides that “The act of an anti-government organization or a member thereof or a person who acts in praise, rubber, propaganda, or assistance in the activities of an anti-government organization or a member thereof or a person who acts in concert with it, or who propaganda and instigates a national defense, shall be punished.”

In this context, the meaning of endangering the existence and security of the State is to protect the independence of the Republic of Korea, and to destroy and end up the functions of the Constitution, laws and subordinate statutes and the constitutional body by invasioning the territory. The meaning of endangering the fundamental democratic fundamental order is to make it difficult to maintain the rule of law, which excludes all violence and arbitrary control, specifically make it difficult to maintain the rule of law, such as respect for fundamental human rights, separation of powers, parliamentary system, multiple party system, election system, private property, economic order and judicial power independence. Article 7 of the National Security Act applies to cases where the act is clearly dangerous to the existence and security of the State or democratic fundamental order (see, e.g., Constitutional Court Order 2003Hun-Ba85, 102 (merged) decided Aug. 26, 2004; Constitutional Court Order 813Hun-Ga13, Apr. 28, 1990).

As long as praises, rubbers, and concerts refer to the acts of praises, inciting or promoting the propaganda of anti-government organizations or their members or those who were ordered to join such organizations, or the acts of assertion or consistent with such arguments or activities, thereby complying with and joining their activities. In order to punish the above crimes, the acts of anti-government organizations shall be praises, rubber, publicized, and concert with the activities of anti-government organizations with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order. Article 1(2) of the National Security Act provides, “In interpreting and applying this Act, it shall be limited to the minimum necessary to achieve the purpose prescribed in paragraph (1) and shall not be extended or interpreted or unfairly restricted fundamental human rights guaranteed by the Constitution, on the grounds that any speech or behavior conforms to the assertion of anti-government organizations, etc. or is evaluated as affirmatively as assertion and activities of anti-government organizations, it shall not be readily concluded that the defendant constitutes an act of concerts, encouraging, or concert with the fundamental order of free democracy or democratic fundamental order.

(2) On November 2005, as to the Mosty and rubber Mosty of Posman

살피건대, 이 사건 기록에 의하여 인정되는 다음과 같은 사정 즉, ① 피고인이 일하는 미국 소재 식당에 종업원으로 취직하여 피고인의 집에 거주하면서 피고인의 이 부분 발언을 직접 들었던 공소외 3은 수사기관 이래 원심 법정에 이르기까지 “식당일이 끝나고 쉬는 자리에서 피고인이 ‘6.25전쟁은 북침이다. 너의 아버지가 해병대 대령출신으로 가족들이 국가보훈대상자이기 때문에 통일이 되면 일차로 숙청을 당한다. 통일이 얼마 남지 않았다. 네가 미국에서 친북운동을 해야 너의 가족이 살 수 있다. 남한은 북한의 선군정치 덕분에 미국으로부터 침략을 받지 않고 있다. 사상이 맞지 않기 때문에 통일이 되면 남한 인구의 3분의 1은 죽는다’고 말하였다.”라고 일관되게 진술하면서(공판기록 제248쪽, 제251쪽, 제271쪽, 증거기록 제33쪽, 제486쪽, 제678쪽) 그 내용을 기억하는 이유에 대해서 “충격적인 이야기였기 때문에 정확하게 기억한다.”라고 진술하고 있는 점(공판기록 제264쪽), ② 위 식당 종업원으로 일하면서 피고인의 집에 거주하였던 공소외 5는 수사기관에서 “피고인이 ‘6.25전쟁은 남침이 아니고 북침임이 틀림없다. 북한에서는 공소외 17( 공소외 3을 가리킴)네 아버지가 해병대 대령출신이고 국립묘지에 묻혀 있다는 사실도 다 알고 있다. 남한은 북한의 선군정치의 덕을 톡톡히 보고 있다. 전쟁이 일어나면 3분의 1은 죽을 것이니 살고 싶으면 모두 나한테 잘 보여라. 전쟁이 나면 북한에 의한 적화통일이 될 테니 그때 후회하지 말고 나한테 잘 보여라’고 말하였다.”고 진술하고 있고(증거기록 제68쪽), 위 식당 종업원으로 일하면서 피고인의 집에 거주하였던 공소외 4는 수사기관에서 “피고인이 ‘전쟁이 나면 너희 같은 군인 자식들은 모두 죽는다. 그러니 나한테 잘 보여라. 6.25 전쟁은 미국과 합작으로 남한이 먼저 북한을 침략한 것이다. 책에 다 나와 있다’고 주장하여 말싸움을 한 적도 있다. 모두 듣기 싫어하고 특히 공소외 3이 그런 말 하지 말라고 면박을 주거나 화를 냈다.”고 진술하고 있고(증거기록 제85쪽), 원심 법정에서 “피고인이 여러 사람이 있는 자리에서 ‘6.25전쟁은 남침이 아니고 북침이다’고 말을 하여 그 말을 듣고 화가 났기 때문에 기억하고 있다.”고 진술하고 있는바(공판기록 제395쪽, 제398쪽), 공소외 5, 4, 3의 위 진술이 서로 일치하여 신빙성이 있는 점, ③ 피고인도 원심 법정에서 “비슷한 이야기를 한 적이 있는데 친구들이 왜곡한 것 같다.”고 진술하여 이 부분 범행을 일부 인정한 바 있는 점(공판기록 제890쪽) 등을 종합하면, 피고인이 공소외 3, 4, 5 등에게 이 부분 공소사실과 같이 말한 사실을 인정할 수 있다. 따라서 공소외 3의 진술에 신빙성이 없어 무죄라는 피고인의 이 부분 주장은 이유 없다.

(3) As to the obscenity and rubber of November 16, 2007

The records of this case are as follows: ① Nonindicted 6, who directly made this part of the statement at the time of the Defendant’s entry into the Republic of Korea as the Defendant’s elementary school as the Defendant’s elementary school, has consistently made the Defendant’s statement from the investigative agency to the court of the court of the court below that “If the Defendant was given an opportunity, he recommended the Defendant to be “I would like to have been living the same as the workers.” (No. 364 of the trial records, No. 245 of the evidence records)”; ② the Defendant also tried at the prosecutor’s office, “I would like to look at the Defendant’s house other than the upper time in which I would like to us think, as we think, at the same place in which I would like to us, and I would like to have tried to view that I would like not to have any difference between the office and the office.” This part of this part of the crime was recognized by the Defendant’s assertion that Nonindicted 637 of the facts charged are credibility and credibility as the Defendant’s statement in this part of the facts charged is not justified.

(4) Whether there is an obvious risk of harm to the fundamental order of free democracy

On the other hand, in light of the judgment criteria set forth in the above (1) above, the defendant's health team and the defendant's remarks described in the above (2) and (3) are partially consistent with the arguments of North Korea and are positively evaluated in North Korea's assertion and activities. However, unlike the acts such as speaking, resolution against many people at open events such as discussions, lectures, meetings, etc., posting an article on the Internet, books, or conducting collective thought learning so that many people can accept the contents thereof, it is merely merely an act of speaking against the non-indicted 3, 4, and 5 who are an employee living together in his own house or against the non-indicted 6 who is an elementary school, and as seen above, the non-indicted 3 et al. al. al. were sponsed or sponsed against the defendant without hearing the defendant's remarks, and in full view of all the circumstances such as the appearance of the defendant's own speaking, circumstances at the time of speaking, relations between the defendant and the other party, the defendant's status, etc., the above assertion does not have merit.

E. As to possession of pro-enemy materials

(1) Criteria for determining Article 7(5) of the National Security Act

In order for a certain expressive material to be recognized as a pro-enemy expressive material under the National Security Act, it shall be active and aggressive to threaten the existence and security of the Republic of Korea and the liberal democratic fundamental order, such as the fact that the contents of the expressive material must be realized through the violence revolution. Whether the expressive material has an objection to the existence or absence of such objection should be determined not only by the overall contents of the expressive material, but also by taking into account all the circumstances, such as the motive for the production thereof, the form and appearance of the expressive act itself, related matters with the outside, and the situation at the time of the expressive act (see, e.g., Supreme Court Decisions 2004Do3212, Aug. 30, 2004; 2002Do4278, Mar

(2) 〈닻은 올랐다〉를 소지하고 있지 않다는 주장에 대하여

피고인은 원심 및 당심 법정에서 “검찰에서는 생각나는 대로 책 제목을 말하였는데 그 중 〈닻은 올랐다〉를 집에서 본 것인지 서점에서 본 것인지 한국에 왔을 때 도서관에서 본 것인지 잘 모르겠다.”라고 진술하면서 〈닻은 올랐다〉를 소지하고 있지 않다고 변소하고 있으므로 살피건대, 이 사건 기록에 의하면 피고인은 검찰에서 ‘소지하고 있는 북한 원전 중 생각나는 제목이 있느냐’라는 질문을 받고 “〈세기와 더불어〉, 〈항일운동사〉, 〈닻은 올랐다〉 등이 기억난다.”라고 진술하였고(증거기록 제634쪽, 제658쪽), 그 내용에 대하여 질문을 받고 “김일성 주석의 일대기를 다룬 내용인데 소설형식으로 되어 있고, 총 30여 권으로 구성되어 있는데 저는 중간 중간 약 15권 정도밖에 소지하고 있지 않아 중간 중간 끊어지는 바람에 전체적으로 다 읽어보지는 못한 것으로 기억됩니다.”라고 진술한 사실(증거기록 제664쪽)을 인정할 수 있고, 위와 같이 피고인이 위 책의 구성과 전체 내용, 직접 소지하고 있는 권수와 일부분만 읽었다는 사정 등을 구체적으로 기억하면서 진술하고 있는 점에 비추어보면 〈닻은 올랐다〉를 소지하고 있다는 검찰에서의 진술에 신빙성이 있다 할 것이므로 피고인의 위 변소는 받아들이지 아니한다. 따라서 피고인의 이 부분 주장도 이유 없다.

(3) 〈닻은 올랐다〉, 〈세기와 더불어〉가 이적표현물인지 여부

위에서 본 법리에 비추어 이 사건에 대하여 보건대, 이 사건 기록에 의하면 〈닻은 올랐다〉는 김일성을 시기별로 우상화하는 내용의 북한원전인 〈불멸의 력사〉 중 일부이고, 〈세기와 더불어〉는 북한에서 대외선전용으로 발간한 김일성 회고록으로 선군정치를 미화하고 수령론에 입각하여 김일성 부자를 맹목적으로 찬양하며 북한 체제의 우월성을 선전하는 내용인바, 위 책의 실질적인 내용, 제작 주체와 제작 목적 등에 비추어보면 위 책은 대한민국의 존립·안전과 자유민주주의 체제를 위협하는 적극적이고 공격적인 것으로 이적표현물에 해당한다. 따라서 위 책이 이적표현물이 아니라는 피고인의 이 부분 주장도 이유 없다.

F. Whether there is an obvious risk of substantial harm to the fundamental order of free democracy

Of the facts charged in the instant case, we examine whether there is a clear danger that pro-enemy may actually harm the existence and security of the Republic of Korea or democratic fundamental order due to the above facts charged. As seen above, from around 2002, the Defendant read the North Korean War and ideological book, and believed that the North Korean system is more likely to be superior to any other system. The Defendant visited North Korea to learn the North Korean system, visited North Korea to learn the North Korean system, participated in the event of the South Korean Union, who is a pro-North Korean group, and belongs to the above organization, and contacted with the North Korean Ambassador and the North Korean Ambassador in order to see the nature of the North Korean system. Accordingly, it is recognized that there is no clear danger of harm and injury to the existence and security of the Defendant, the purpose and circumstance of the meeting and correspondence of the North Korea, and the existence and reason of the North Korean system, and there is no clear danger of harm and injury to the North Korean system.

4. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

A. On December 2005, as to communications due to telephone conversations with the United Nations Representative Cho Hong-ro on the North Korean Peninsula around December 2005

As to this part of the facts charged by the Defendant, there is only a call with Nonindicted 8, the president of the Republic of Korea Union, and Nonindicted 1, the secretary general, who is the president of the Republic of Korea, from the investigative agency to the court of the trial of the party.

(1)In light of the following facts: (a) Nonindicted Party 3 appeared to be reliable; (b) Nonindicted Party 3 appeared to be a witness of Nonindicted Party 3; and (c) Nonindicted Party 3 appeared to be a witness of the NIS on March 7, 200 and Nov. 6, 208; (d) Nonindicted Party 3 appeared to be a witness of Nonindicted Party 3; and (c) Nonindicted Party 3 appeared to be a witness of Nonindicted Party 5’s phone call; and (d) Nonindicted Party 3 appeared to be a witness of Nonindicted Party 5’s phone call; and (e) Nonindicted Party 3 appeared to be a witness of Nonindicted Party 5’s phone call; and (e) Nonindicted Party 3 appeared to be a witness of Nonindicted Party 490; and (e) Nonindicted Party 3 appears to be a witness of Nonindicted Party 5’s phone call and a witness of Nonindicted Party 3’s phone call that he was not a witness of Nonindicted Party 3; and (e) Nonindicted Party 3 was not a witness of Nonindicted Party 49’s phone call.

Therefore, the judgment of the court below that acquitted the defendant on this part is just, and the prosecutor's allegation in this part is without merit, since there is no other evidence to acknowledge this part of the facts charged merely with the above statement of the non-indicted 3 and the statement of the non-indicted 5 that he transferred it from the non-indicted 3.

B. On April 2006, as to the meeting with Cho Ho-ri on April 2006

In light of the records of this case, the defendant's statement that recognized this part of the crime at the prosecutor's office is reliable, and the defendant stated at the prosecutor's office that " around April 2006, Non-Party 1 talked about how to talk with him with him." The defendant asked questions as to whether he talked with him with him about the long-distance question and the long-distance question, and asked him about whether he was well aware of it." (Evidence No. 629, No. 640 through No. 642 of the evidence record) that he stated at the prosecutor's office that "No. 6 of this case's record was just and acceptable, but the defendant stated at the prosecutor's office that he was not guilty of this part of this case's statement after the reversal of the above statement at the prosecutor's office, and there was no possibility that the defendant stated at the prosecutor's office's office about this part of this case's statement that he did not have any possibility of denying it from 200 days before he made a statement.

C. As to the praises after wearing the People’s Uniform

According to the records of this case, it is recognized that the defendant suffered people's uniforms from his own house and stated that he was returned to Non-Indicted 3 et al. by showing pictures at the time of North Korea.

However, in light of the above 3. D., in light of the criteria for determination under Article 7(1) of the National Security Act, the above speech and behavior of the defendant merely expressed his mind that he was exchanged at the time of North Korea. The above speech and behavior cannot be seen as a positive assessment of the praises or activities of anti-government organizations as provided under Article 7(1) of the National Security Act (it cannot be seen that the above speech and behavior of the defendant has a value to cite North Korean system and drums free democracy. Such interpretation is limited to the minimum necessary to achieve the purpose of paragraph (1) of this Act in interpreting and applying this Act, and it may not be permitted in cases where it is contrary to the purport of Article 1(2) of the National Security Act that does not unfairly restrict the fundamental human rights of the people guaranteed by the Constitution, or in cases where it is contrary to the fundamental order of free democracy, such as the contents of the above speech and behavior, attitude of the National Security Act, or any danger of harm and danger of the defendant's existence and behavior between the defendant and the other party.

Therefore, the judgment of the court below that acquitted this part is just, and the prosecutor's allegation in this part is without merit.

D. As to the praises by supporting the Taekwondo model group in North Korea

According to the records of this case, it is recognized that the defendant supported the defendant while accompanying the Taekwondo demonstration team in the Kentkin State of the United States in the United States of America with North Korean Taekwondo demonstration team in the event of the performance of the demonstration team.

However, the above 3. D. In light of the criteria for determination under Article 7(1) of the National Security Act, the Defendant’s act of supporting the performance of the Taekwondo demonstration team in North Korea is merely an act that ordinarily takes place in cultural and sports events, and that he helps the North Korean players to hold the performance well, and it is not different from the fact that he helps the North Korean players to do so. (In cases where the act of assisting the North Korean players in the performance of North Korea constitutes praise and rubber as prescribed by the National Security Act, it may result in treating all citizens who assist the North Korean players participating in various events as criminals in the current situation where inter-Korean exchange and cooperation are actively carried out. Moreover, the lower court’s act alone does not constitute a justifiable and arbitrary enforcement of law against the citizens who are engaged in legal assistance, and thus, it cannot be deemed that the Defendant’s act of assisting the North Korean players in the performance of the North Korea at the time of providing support to the North Korean players, or that the Defendant’s act of assisting the North Korean players at the same time constitutes a positive evaluation of the North Korea’s and political system.

E. As to the possession of pro-enemy contents due to possession of human air and Kim Il-sung photographs

According to the records of this case, the fact that the defendant was holding a man-made and Kim Il-sung photo in a restaurant and residence is recognized.

In light of the above standard of determination of pro-enemy contents, North Korea’s pictures are symbolizing pro-enemy contents, which are anti-government organizations, and Kim Il-il as the highest power of North Korea. However, in order to interpret pro-enemy contents as pro-enemy contents, North Korea’s pictures are merely a symbol expressing North Korea separately from other countries, and this case’s Kim Il-sung’s pictures are expressed together with the revolution or propaganda expression, or Kim Il-sung’s acts are not a aggressive and aggressive act against North Korea’s law, and if it is against the purpose of interpreting pro-enemy contents, it cannot be said that North Korea’s pictures are against the existence and safety of the Republic of Korea and free democracy system, and that North Korea’s pictures cannot be deemed as being objectively expressed against the purpose of interpreting pro-enemy contents, such as Kim Il-sung’s self-con, which is one of the most likely to be in possession of pro-enemy contents in North Korea’s possession, and thus, it cannot be deemed that the Defendant’s self-conven with North Korea’s legislative intent.

Therefore, the judgment of the court below which acquitted the defendant on this part on the ground that it cannot be deemed that the photographs of the human air and Kim Il-sung contain active and aggressive contents threatening the existence and security of the Republic of Korea and democratic fundamental order. The prosecutor's allegation in this part is without merit.

F. As to the possession of pro-enemy contents due to the possession of the Silelelight Prohibition Dispute and the National sovereignty Period:

In light of the above 3. E. (1) the purpose of this article is to examine whether the ‘candlelights and citizens sovereignty era' is pro-enemy contents or not, among the above contents of this article, we actively promote the Korea-U.S. FTA to agree on the so-called 21st century Strategy Union, and to make it more thoroughly available to the United States. Furthermore, the issue of import of Madleb Co., Ltd., which was the origin of candlelights, started from the big framework of the change in North Korea-U.S. relations and the U.S. strategy to accelerate the U.S. Peninsula. The U.S. government’s Mad Co., Ltd.’s Mad Co., Ltd.’s Mad Co., Ltd.’s Mad Co., Ltd.’s Mad Co., Ltd.’s Mad Co., Ltd.’s Madle-U.’s Madle-U.S. government’s Madle-U.

5. Conclusion

Therefore, the defendant's appeal against the violation of the National Security Act due to the preparation and conspiracy of escape among the conviction portion of the judgment below is justified. Since the above part among the conviction portion of the judgment below and the remaining part of the judgment below are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment below's conviction cannot be maintained as it is, without examining the defendant's and the prosecutor's allegation of unfair sentencing, it is reversed the conviction portion of the judgment below, and it is judged as follows through pleading pursuant to Article 364 (6) of the Criminal Procedure Act, and the prosecutor's appeal against the acquittal portion of the judgment below is without merit, and it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act since the prosecutor's appeal against the acquittal portion of the judgment below is without merit.

Criminal facts recognized by this court are the same as the corresponding column in addition to deletion of paragraphs (c) and (e) of 2.-3 of the corresponding column of the judgment of the court below, and such facts shall be quoted by Article 369 of the Criminal Procedure Act.

The summary of the evidence recognized by this court is the same as the corresponding column of the judgment below, and thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act (However, since it is clear that the "Korean Union of South and North Korea" as stated in Article 9 of the summary of the evidence of the judgment below is an erroneous entry of the "Korean Union of South and North Korea", it shall be corrected ex officio in accordance with Article 25(1)

1. Article applicable to criminal facts;

Article 6(1) of the National Security Act (the point of diving and escape), Article 6(1) and (4) of the National Security Act (the point of attempted escape), Article 7(5) and (1) of the National Security Act (the point of possession of each pro-enemy organization) and Article 8(1) of the National Security Act (the point of each meeting and communication)

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Concurrent imposition of suspension of qualifications;

Article 14 of the National Security Act

1. The preparation and appearance of escape;

A. Summary of the facts charged

This part of the facts charged is identical to the facts charged in the judgment below 2. C., and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

B. Determination

This part of the facts charged constitutes a case where there is no proof of a crime as seen in the above 3.B. (2), and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

2. The occupation of praises and rubber on November 1, 2005 and November 16, 2007

A. Summary of the facts charged

This part of the facts charged is identical to the facts charged in the judgment of the court below in accordance with Article 369 of the Criminal Procedure Act, since it is identical to the facts charged in paragraphs (1) and (2) of 2.Ma-Ma.

B. Determination

This part of the facts charged constitutes a case where there is no proof of crime as seen in the above 3. D., and thus, a not-guilty verdict under the latter part of Article 325 of the Criminal Procedure Act

Although the defendant inferred North Korea's arguments for the purpose of franchising North Korea, and consistently contacted with North Korean members and pro-North Korean organizations' personnel management, the defendant has no record of punishment for the same kind of crime, and the society of the Republic of Korea is mature and developed, and it seems that the defendant's act has reduced social risk compared to the past. In addition, the defendant's motive, means and result of the crime of this case, the defendant's age, character and conduct, family environment, etc. shall be determined as ordered by taking into account all the circumstances shown in

Judges dominwon (Presiding Judge) Maximum Young-young Kim Nam