Defendant

Prosecutor

Clinical Paths

Law Firm Shin-soo et al.

Seoul Central District Court Decision 2007 Inventory conformity6 Decided November 13, 2009

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

A. Legal principles as to admissibility of evidence

Each protocol of interrogation of the accused prepared by the judicial police officer, and each statement prepared by the accused and Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court) are consented to the defendant to recognize or use as evidence the authenticity, voluntariness, and contents of the trial in the original trial prior to the retrial. However, the court below rejected the admissibility of evidence and did not adopt

B. Error of mistake

Even with the evidence adopted by the court below, the defendant can sufficiently be recognized that the defendant provided convenience by being aware of the fact that the non-indicted 1 was engaged in activities related to the National Democratic Youth Federation (hereinafter referred to as the "Private Youth Federation") and being engaged in such activities. Nevertheless, the court below acquitted the defendant of violation of the rules of evidence against the rules of evidence.

2. Summary of the facts charged in this case

The Defendant: (a) was aware of the fact that Non-Party 1, who was in friendship from October 1966, who was friendly to the Republic of Korea, was a public secret underground organization for the case of the People’s Revolution with Non-Party 2, Non-Party 3, and Non-Party 4, as well as Non-Party 2, Non-Party 3, and Non-Party 4, in order to form an anti-government organization and engage in the guiding duties; and (b) was a person who was born by an investigative agency by participating in the organization activities of the public Cheongsung as of May 28, 1974, in view of the fact that the Defendant knew in the article of the Republic of Korea

At around 22:00 on June 14, 1974, when Nonindicted Party 1 asked the head of the defendant's house located in Dongdaemun-gu Seoul (hereinafter address omitted) and the letter, from that point to 07:30 on the following day, Nonindicted Party 1 was well aware of Nonindicted Party 1 at the defendant's house house building site from June 15, 1974; from 08:00 on June 15, 1974 to 14:00 on the same day, Nonindicted Party 1 sent Nonindicted Party 1 to ○○○○○○○○○, located in Seongdong-gu Seoul, Seongdong-gu, Seoul, and offered convenience to Nonindicted Party 1; around 11:30 on the same day, Nonindicted Party 1 asked Nonindicted Party 1 to take part in the activities of the President, and provided Nonindicted Party 1 with convenience, such as taking part in the activities of the anti-government organization, such as taking part in the activities of Nonindicted Party 1's name, etc. at around 13:30 on the same day.

3. The judgment of the court below

The court below found that the evidence of Paragraph 1 A, following the decision to commence a retrial, is inadmissible as a defense counsel denies its contents, and the remaining evidence submitted by the prosecution is not reliable or insufficient to recognize the facts charged, and there is no other evidence to prove this, and thus, the violation of the public law among the facts charged is not guilty. Meanwhile, the charges of violating the presidential emergency measures in a commercial concurrent relationship constitute a judgment of acquittal in a case where the punishment was abolished due to the amendment or repeal of the statutes after the crime.

4. Judgment of the court below

A. As to the assertion of misapprehension of legal principles

With respect to a case for which the ruling to commence a new trial has become final and conclusive, the court shall re-examine the case according to its instance (Article 438(1) of the Criminal Procedure Act), and in the new trial proceedings on the final and conclusive judgment of the first instance court, the court shall not use the evidence of the previous litigation proceedings as it is, and it shall be deemed that the facts constituting the crime can be admitted only when the evidence is recognized after the whole process of the examination of evidence, such as the application for examination of evidence, the statement of the parties

From this point of view, the copy of each protocol of interrogation of the accused prepared by the judicial police officer among the evidence submitted by the prosecutor first, and each protocol prepared by the accused at the police investigation stage, since there is no record recognizing the contents of the accused or defense counsel in the procedure of the original trial after the decision to commence a retrial, the admissibility of evidence cannot

In addition, the copy of Non-Indicted 1’s written statement is without the consent of the defense counsel after the decision on commencing a new trial. However, since the authenticity of the formation was not proven by the statement at the trial date after the decision on commencing a new trial by Non-Indicted 1, the original person making the original statement, the admissibility of the written statement is also inadmissible. Although the judgment of the court below is somewhat inaccurate, it is somewhat inaccurate to the purport that the admissibility of the written statement is denied by the denial of the contents of the defense counsel, it is legitimate to recognize the admissibility of the above evidence. Accordingly, the prosecutor’s above assertion on the misapprehension of the legal principles is without merit.

B. Regarding the assertion of mistake of fact

(1) Prior to the repeal by Act No. 3318 of Dec. 31, 1980, Article 7 of the former Anti-Corruption Act (hereinafter “former Anti-Corruption Act”) provides that “A person who, knowing that a person committed a crime under this Act or the National Security Act, provides guns, ammunition, money, or other property benefits, or provides a place for diving, conference, or liaison, or provides convenience by other means, shall be punished by imprisonment for not more than ten years.”

However, the purpose of the above Act is to ensure the safety, survival and freedom of citizens by regulating anti-state activities that may endanger the security of the State as well as the security of the State (Article 1(1) of the Anti-Public Act). The purpose of the Act is to ensure the security, survival and freedom of citizens by absorbing considerable parts of the contents thereof (Article 1(1) of the National Security Act). Furthermore, as a rule for interpretation and application thereof, the National Security Act specifically declares that “the minimum necessary for achieving the purpose” as a rule for its interpretation and application, and that “the basic human rights of the people guaranteed by the Constitution” should not be unduly restricted” (Article 1(2) of the National Security Act). In relation to the scope of “provision of convenience” subject to punishment under Article 7 of the above anti-public law and its contents, which are similar to that of Article 9 of the National Security Act and Article 2 of the same Act, the above term should be broad in interpreting the language and text, and thus, it should be likely to undermine the basic order of free democracy and enforcement of the Constitution.

In light of the language, purpose, and principle of interpretation and application of the above anti-public law and relevant statutes, “providing convenience” under Article 7 of the anti-public law should be strictly interpreted, i.e., providing convenience that is objectively related to the activities of the public-private partnership while recognizing the relevance of the public-private partnership with the other party who is the principal offender, is an act of providing convenience that is objectively related to the activities of the public-private partnership, and that is limited

(2) We examine whether the Defendant had been aware of the relevance to Nonindicted Party 1’s public relations relations at the time of the instant report. According to the evidence duly adopted and examined by the lower court, the Defendant criticizes that “the Defendant was to be sunken,” and seems to have been seriously doubtful, and there was a strong doubt that the instant case was exaggerated or organized by the police at the time of the Japanese era.” On May 27, 1974, the media at the time of announcement of the investigation results of the Non-Indicted Party 1’s public relations relations with the U.S. Prosecutor’s Office of the U.S. Military Court, which was found to have been prosecuted by the Non-Indicted Party 1 at the time of the instant report and the summary of the relevant facts charged, and the list or suspicion of Nonindicted Party 1’s public relations relations with the Defendant at the time of the instant report, which was not directly related to the Defendant’s organization and public administration of the Korea National Security Act, but did not directly related to the Defendant’s public administration’s non-indicted 1’s organization at the time of the instant report.

In the public prosecutor’s trial prior to the prosecution’s investigation and reexamination, the following circumstances are met: “A public prosecutor took advantage of the fact that Nonindicted Party 1 was aware that he was aware of the fact that he was taking part in and leading in the establishment of a confidential underground organization for the construction of the nation of public policy as a person behind the public-private partnership, and that he was a person behind the public-private partnership through the article of the Korean public-private partnership on May 27, 1974.” However, in light of the contents of the above statement and the circumstances at the time of recognition prior to the above, it shall not be construed to mean that Nonindicted Party 1 was aware of the fact that he was receiving suspicion from the investigative agency,

(3) 다음으로 피고인의 행위의 내용과 국가안전 등에 미치는 위험성 등에 관하여 살피건대, 위 증거들에 의하면 피고인이 공소외 1에게 도움을 준 내용이 하룻밤 숙식을 제공하고 개인 소지품을 찾아달라는 부탁에 응하여 심부름을 해 준 정도에 불과한 점, 공소외 1은 피고인과 수년전부터 알고 지낸 친구 사이였다는 점, 공소외 1의 당시 피고인에 대한 부탁 내용도 하룻밤 재워달라는 것이 전부였던 점 등의 사정을 알 수 있는바, 이에 비추어 보면 이 사건 피고인의 행위가 공산계열의 활동에 편의를 제공함으로써 국가의 안전이나 국민의 자유를 실질적으로 위태롭게 할 구체적이고 명백한 위험성이 있는 정도에 이른다고 보기 어렵다.

(4) Ultimately, the Defendant’s act of this case lacks awareness that it is related to the activities of the public-private partnership, and it is difficult to view that there is a specific and obvious danger that may substantially endanger the relationship with the public-private partnership or the national security or the freedom of the people. Thus, it does not constitute “contestive provision” under Article 7 of the Anti-Public Law. There is no other evidence to prove the facts charged in violation of the Anti-Public Law, which constitutes a case where there is no proof of crime. Accordingly, the Prosecutor’

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jong-tae (Presiding Judge)