A. Whether a suspect interrogation protocol prepared by a prosecutor during the illegal period of refusing to meet with a defense counsel is admissible (negative)

B. Whether an indictment procedure is unlawful and invalid for an unlawful ground, such as unlawful conduct (negative)

C. Whether the National Security Act’s provision of North Korea as an anti-government organization is inconsistent with the principles of international peace and peaceful unification declared by the Constitution (negative)

D. Contents of awareness as to a person who received an order in the crime of meeting under the National Security Act, the contents of which include a meeting with a person who received an order from an anti-government organization;

E. Whether an act of speaking or speaking with the awareness of, or with the intent to encourage, or aid the activities of, anti-government organizations constitutes an act within the limits of the freedom of expression and the freedom of arts under the Constitution (negative)

F. Whether the “distribution” of a drawing which is a pro-enemy organization constitutes the “distribution” of pro-enemy organization under Article 7(5) of the National Security Act (affirmative)

A. The confession of the suspect obtained in a state where the right of interview and communication with the counsel guaranteed by the Constitution is illegally restricted shall be practically and completely excluded from the evidence of conviction denying the admissibility of evidence. Accordingly, in the case where the defendant is detained and the application for interview with the counsel is rejected in the National Security Planning Department, and the prosecutor examines the defendant while filing a quasi-appeal against this is sent to the prosecution, and the first interrogation of the suspect is conducted in the quasi-appeal procedure, and the above rejection of interview is revoked and the interview is permitted, the first interrogation of the suspect against the defendant by the prosecutor shall be deemed to be conducted in a state where the illegality state prohibiting the interview and communication of the counsel is continued. Therefore, the interrogation of

B. Even if a defense counsel’s existence of an unlawful cause, such as unlawful conduct, is a reason for excluding the evidence collected through such unlawful procedure, it cannot be deemed that the procedure itself of prosecution is invalid as it is unlawful.

C. The principle of international peace and peaceful unification declared in the Preamble and Articles 4, 5, and 66 of the Constitution is premised on the premise that it does not harm the Daejeon of the Constitution of the Republic of Korea, which is the fundamental order of free democracy. Therefore, in a clear situation where North Korea still threatens to the basic order of free democracy, the National Security Act defines North Korea as an anti-state organization cannot be said to contravene the principles of international peace and peaceful unification.

D. The crime of meeting, etc., in which the defendant committed an act in contact with a person who was ordered by North Korea who is an anti-government organization, requires that the person who was contacted with him was aware of the person who was ordered by North Korea in addition to the person who was ordered by North Korea. The recognition refers not to the degree that he was aware of the person who was ordered by North Korea merely in concert with North Korea, but to the person who was engaged in his activities under the order of North Korea. Thus, it is difficult to conclude that the defendant was aware of the person who was under the order of North Korea merely by referring to the Kim Il who was contacted by the defendant in the presence of the defendant, or by citing the music of North Korea.

E. The freedom of expression and the freedom of art, not unlimited, are fundamental rights guaranteed by the Constitution, but can be restricted to the extent that it does not infringe on the essential contents of the freedom and rights in the event necessary for national security, maintenance of order or public welfare under Article 37(2) of the Constitution. Thus, the legislative purpose and the limit of the application of the National Security Act should not be deemed as unconstitutional in interpreting that the restriction on freedom and rights is limited within the above limits. Thus, the act of producing, displaying, distributing, and distributing expressive materials containing such contents goes beyond the limit of the freedom guaranteed by the Constitution, and satisfies the requisite elements of Article 7(1) and (5) of the National Security Act.

F. The act of distributing pro-enemy materials under Article 7(5) of the National Security Act refers to a situation where pro-enemy materials can be distributed to many and unspecified persons, and thus, the act of distributing pro-enemy materials to the general public falls under the category of distributing pro-enemy materials.

(e) Article 7(1)(e) of the National Security Act. Article 7(5)(f) of the same Act. Articles 7(5) and 2(d) of the same Act, Articles 4, 5, and 8(1)(a) of the same Act. Article 12(4)(c) of the Constitution, the first sentence of Article 4, the first sentence of Article 5, Articles 66(3) of the same Act, Articles 66(3)(e) of the same Act, 21(1), 22(1), and 37(2) of the same Act. Article 91, 309, and 312(1)(b) of the Criminal Procedure Act

A. Supreme Court Decision 90Do1285 delivered on August 24, 1990 (Gong1990, 2054) (Gong1990, 2054). Supreme Court Decision 90Do646 delivered on June 8, 1990 (Gong190, 1500) 90Do1518 delivered on September 14, 1990 (Gong190, 2123). Supreme Court Order 89HunGa113 delivered on April 2, 1990 (Gong11514, 21, 19)

Defendant

Defendant and Prosecutor

Attorney Cho Young-soo et al.

Seoul High Court Decision 90No1022 delivered on June 1, 1990

The guilty portion 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.

1. We examine the prosecutor’s grounds of appeal.

(1) Article 12(4) of the Constitution stipulates that any person who is one of the fundamental rights concerning physical freedom has the right to receive assistance from a defense counsel when he is arrested or detained, and accordingly, Articles 30 and 34 of the Criminal Procedure Act stipulate that the accused or the suspect has the right to receive assistance from a defense counsel or a person who is placed in the custody of the person under custody of the right to receive assistance from a defense counsel. As such, the right to meet and communicate with a defense counsel constitutes a core of the right to receive assistance from a defense counsel guaranteed by the Constitution, and the right to receive assistance from a defense counsel is not expected to have substantial assistance from the defense counsel in a state where unlawful restriction on meeting and communication with the defense counsel. As such, the restriction on the right to interview and communication by a defense counsel infringes on the fundamental rights guaranteed by the Constitution, and such restriction on the right to receive assistance from a defense counsel should be excluded from the evidence of guilt by denying the admissibility of evidence.

According to the facts duly confirmed by the court below, while the defendant was detained on August 3, 1989 and was investigated by the National Security Planning Department, the defendant applied for an interview with his defense counsel on the 12th day of the said month, but was rejected, the defendant was sent to the prosecution around 22.23:00 of the said month while filing the quasi-appeal. The prosecutor examined the defendant from around 24:00 on the same day, and prepared the first protocol of examination of suspect as to the defendant from around 24:0 on the same day. On the 24th day of the said quasi-appeal, the above non-permission disposition was revoked, and the interview was allowed by the defense counsel for about 4

In light of the above facts, the first interrogation of the suspect against the defendant by the public prosecutor should be deemed to have been conducted in a situation where the illegality of the prohibition against meeting and communication by the defense counsel continues. Accordingly, the judgment below which admitted the admissibility of the above interrogation protocol to the same purport is just and there is no error of law by misunderstanding the legal principles on meeting and admissibility of evidence as in the theory of lawsuit. In addition, the court below's reasoning is clear that the admissibility of evidence is denied on the ground that the above interrogation protocol was prepared in a state where meeting and communication with the defense counsel was illegally restricted prior to determining its voluntariness. Therefore, there is

(2) In addition, according to the records, the delivery of the theory of lawsuit, such as "non-sacrout and Japanese national origin", "non-sacrout history and principle" among the facts charged cannot be deemed to be a mere transitional fact, such as the theory of lawsuit. Thus, the court below's decision that the non-sacrout should not be a espionage crime is just and there is no error of finding the fact that the prosecution has not been instituted, such as theory of lawsuit

In addition, according to the records, the court below is justified in finding the defendant not guilty on the grounds that the defendant's lectures, such as "the development cost of art in South and North Korea," which was presented by the Jeonnam University University of Arts and College on November 1, 198, cannot be seen as obsting or encouraging the arguments and activities of the North Korean Gongsan group (hereinafter "North Korea"), and there is no error of law by misunderstanding the legal principles of Article 7 (1) of the National Security Act, as alleged in the arguments.

In addition, examining the reasoning of the judgment of the court below in light of the records, the meeting of the court of first instance maintained by the court below as a single comprehensive crime, and the meeting with the non-indicted 2 is a separate crime from the meeting with the non-indicted 1, and therefore, it is acceptable to find the non-indicted 1 guilty of the subsequent meeting, and there is no error of law by misunderstanding the legal principles of a single comprehensive crime.

2. We examine Defendant’s defense counsel’s ground of appeal No. 1.

In the case of a judgment dismissing a public prosecution, when the procedure of a public prosecution as stipulated in Article 327 subparagraph 2 of the Criminal Procedure Act is null and void in violation of the provisions of law, it refers to a case where a public prosecution is instituted by an unauthorized person, the condition of a public prosecution is lacking, or there is a serious violation of the method of indictment. Thus, even if the theory of a lawsuit is illegal, it cannot be deemed that the procedure of a public prosecution itself is illegal and invalid because it does not constitute a case where the procedure of a public prosecution is illegal and invalid. Thus, it is groundless in the judgment of the court below that there is an error of law by misunderstanding the legal principles as to the provisions of Article 327 subparagraph

3. We examine the grounds of appeal 2.

Since the principles of international peace and peaceful unification declared by the Korean Constitution under Articles 4, 5, and 66 are premised on the premise that it does not harm the Daejeon system of the Korean Constitution, which is the fundamental order of free democracy, the principle of international peace and peaceful unification is still a premise that it does not harm the fundamental order of free democracy. Thus, in the situation where it is obvious that North Korea still has given up the full waiver of the basic system of our society with our military power, it does not seem to be a threat to the fundamental order of free democracy, and it is obvious that the National Security Act stipulates North Korea as an anti-government organization does not conflict with the principles of international peace and peaceful unification declared by the Korean Constitution (see Supreme Court Decision 90Do646 delivered on June 8, 190). It is justifiable for the court below to judge North Korea as an anti-government organization in the same purport, and there is no violation of law such as misconception of facts or misapprehension of legal principles as argued by the theory of

4. We examine the ground of appeal No. 3.

(1) According to the reasoning of the judgment below, the court below found the facts of its judgment guilty of all of 1 (convening), 2 (locked), 3 (Telecommunications), 4, 5 (Spying), 7 (Telecommunications, Receipt of Money and Valuables), 8 (Spying), and 11 (Telecommunications) and applied Articles 4(1)2, 5(2), 6(2), and 8(1) of the National Security Act.

However, each of the above crimes is an act committed by the defendant in contact with the non-indicted 1, who was ordered by North Korea as an anti-government organization, and it is necessary to recognize that the non-indicted 1 was a person who was ordered by North Korea as well as the person who was ordered by North Korea as an anti-government organization. According to the records, upon examining the evidence employed by the court below, the non-indicted 1 recognized that he was a person who was ordered by the North Korean government as a person who was ordered by the North Korean government since he was in contact with the member of North Korea during the European travel between the non-indicted 3 from around 1985 to 198, and was in contact with the member of the non-indicted 1, who was ordered by the non-indicted 1 as a person who was ordered by the North Korean government. However, it is just and persuasive with the judgment below that the defendant was a person who was ordered by the North Korean government.

First of all, according to the records, the defendant led to the confession that the non-indicted 1 was aware that he was subject to North Korea's order by introducing the non-indicted 2 to the defendant at the time of the investigation by the National Security Planning Department and the prosecutor at the time of the first interrogation of the suspect, and by soliciting him to leave North Korea, etc. However, the confession is reversed thereafter, and the confession is reversed, and the above confession is a false confession by coercion, and the defendant was unaware that the non-indicted 2 was subject to North Korea's order, and the non-indicted 1 did not know that the defendant was the person who was subject to North Korea's order. As seen above, each newspaper of the suspect obtained the above confession was illegally deprived of the defendant's right to contact, and the confession of the suspect obtained in such unlawful state is inadmissible, and it is not admissible as evidence of guilt.

Next, according to the reasoning of the judgment below, the court below acknowledged the fact that the non-indicted 1 used the expression "Gimsung-man" as to the whole in the conversation with the defendant, and that he heard only in the tea when he gets out of the difference between the defendant and the non-indicted 1, while considering theme of the North Korean film called "Saakdo," "Saak", "Saak", "Saak-in, Eyak-in, Eyak-in", and these days explained that it can be deemed the largest among the North Korean film films where he well expresses the dynamics of Kim Jong-ju or his ties, and accordingly, it is judged that the defendant who received higher education can be recognized that the non-indicted 1 was a person who received the order of the North Korean public relations group, or that it can be recognized that it was sufficiently aware at least dolusently or fully.

However, recognition of the person who was ordered by North Korea refers not to the degree of understanding of the person who was the pro-North Korea who was friendly in North Korea, but to know of the person who was engaged in the activities under the order of North Korea. Thus, it is difficult to conclude that Nonindicted Party 1 was aware of Nonindicted Party 1 as the person who was engaged in the activities under the order of North Korea on the sole basis of the fact that Nonindicted Party 1, as in the time of the original trial, called the Kim Il-il who was in the presence of the defendant, or obsting the music of North Korea.

In addition, according to the statement of the consul's certificate of the formation of the executive body of the Republic of Korea, the non-indicted 1 is the head of the international department of the Council for the Republic of Korea's Democratic Movement for the Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic.

Ultimately, the court below found the defendant guilty on each of the facts stated in the judgment on the premise that the non-indicted 1 was aware of his status as a person who was ordered by the North Korean Industrial Complex Group, and found the defendant guilty on each of the following facts: (i) the judgment was made, 2 (locked), 3 (Telecommunications), 4, 5 (Telecommunications), 7 (Telecommunications), 8 (Telecommunications Communication), and 11 (Telecommunications Communication). The judgment on the value of evidence as to the subjective facts of the constituent elements of the crime was reversed, and there is a good reason to discuss this issue, and therefore, it is clear that the part of the judgment on each of the above facts cannot be maintained without any decision on other grounds of appeal.

(2) The judgment of the court below which discussed the appeal is erroneous in the misunderstanding of the legal principles of Article 7 (1) and (5) of the National Security Act. However, even after examining the records, the court below's misunderstanding of the facts or misunderstanding of the legal principles of Article 7 (1) and (5) of the National Security Act (the production and distribution of foreign expressions) with respect to the act of sending the Switzerland to North Korea and displaying it on the Pyeongtaekyang Art Exhibitions, the 9 and 12-12-2-2-2- the judgment of the court below, and the 13-3-2-2- the National Art 13-2-2-2 of the judgment of the court below.

The freedom of expression and the freedom of art, not unlimited, are fundamental rights guaranteed by the Constitution, but can be restricted to the extent that it does not infringe on the essential contents of the freedom and rights, if necessary for national security, maintenance of order, or public welfare under Article 37(2) of the Constitution. Thus, the legislative purpose and application of the provision of the National Security Act are not deemed unconstitutional as long as it is interpreted to limit it to the extent that it does not infringe on the fundamental contents of the freedom and rights as above. Thus, as in the instant case, the Defendant’s act of producing, displaying, and distributing expressive materials that expressed the same contents is beyond the limit of the freedom guaranteed by the Constitution and satisfies the requisite elements of Article 7(1) and (5) of the National Security Act as it goes beyond the limit of the freedom guaranteed by the Constitution.

In addition, the act of distributing pro-enemy contents under Article 7 (5) of the National Security Act refers to a situation where pro-enemy contents can be distributed to many and unspecified persons, and thus, the act of distributing pro-enemy contents to the general public falls under the category of distribution, and there is no ground for misunderstanding this point.

4. Therefore, the appeal by the defendant is reversed and remanded, and the appeal by the prosecutor is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-seok (Presiding Justice)