Whether the operator of a private posting space, such as Blog, can be deemed to have held another person’s writing in accordance with Article 7(5) of the National Security Act solely on the ground that the operator of a private posting space, such as Blog, had the right to delete other person’s writing posted at the posting space without deletion (negative)

In light of the principle of prohibition of analogical interpretation derived from the principle of no crime without the law, and Articles 1(2) and 7(1) and (5) of the National Security Act, the mere fact that the operator of a private Internet space established under the name of “blogs”, “flogs”, “flogs”, “car page”, etc. has the right to delete another’s writing posted on the private Internet space without deleting it, the operator of the private Internet space cannot be deemed to have held another’s writing as stipulated in Article 7(5) of the National Security Act.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 1(2) and 7(1) and (5) of the National Security Act; Article 325 of the Criminal Procedure Act

Defendant

Defendant and Prosecutor

Attorney Senior Gyeong-soo

Incheon District Court Decision 2009No4354 Decided June 10, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

Although North Korea is a partner of dialogue and cooperation for the peaceful unification of South and North Korea, North Korea still has the character as an anti-government organization that is bound to adopt our liberal democracy system while enhancing the hostile unification route despite changes in the relationship between South and North Korea, and therefore, it is established by the Supreme Court that the normative power of the National Security Act that regulates anti-government organizations, etc. is still valid (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008; Supreme Court en banc Decision 2010Do189, Jul. 23, 2010).

In the same purport, the judgment of the court below which held that North Korea is an anti-government organization is just, and there is no error in the misapprehension of legal principles as to anti-government organization as provided in Article 2 of the National Security Act.

B. As to the grounds of appeal Nos. 2 and 3

In order to be recognized as pro-enemy contents under the National Security Act, their contents must be active and aggressive to threaten the existence and security of the State, which is the legal interest of the National Security Act, and democratic fundamental order. Whether there exists such an objection shall be determined not only by the overall contents of the expressive materials, but also by taking into account all the circumstances, such as the motive for the production of the expressive materials, the form of the expressive act itself, matters related to the outside, and the circumstances at the time of expressive act. It is evident that the crime under Article 7(5) of the National Security Act is producing, importing, copying, carrying, transporting, distributing, selling, or acquiring documents, paintings, or other expressive materials for the purpose of pro-enemy acts stipulated in Articles 1, 3, and 7(4) and is also the so-called pro-enemy act. The purpose of the crime is to separately be deemed as an excessive and subjective element for the establishment of the crime, and even if the actor knew and committed an act stipulated in paragraph (5) above, it is not recognized that the Defendant committed an act constitutes an act of pro-enemy among the prosecutor and the prescribed intent.

In full view of the aforementioned legal principles, reasoning of the lower judgment, and circumstances revealed in the record, namely, ① the expression of the part convicted in the lower judgment among the facts charged in this case (hereinafter in this paragraph, referred to as the “instant expression”) that praises, propagandas, or act in concert with, the major arguments of North Korea by justifying the nuclear development of North Korea and praiseing the military politics alleged by North Korea; ② the Defendant cannot be deemed to have posted or possessed the instant expression for the purpose of pure academic research, etc.; ③ the Defendant opened and actively operated the camera at the Internet space accessible to anyone, the instant expressive expression constitutes a pro-enemy organization under the National Security Act, which threatens the existence and security of the country and democratic fundamental order, which is protected by the legal interest of the National Security Act, and thus, constitutes a pro-enemy organization beyond the limit of the freedom of expression; and the Defendant also possessed, acquired, distributed, or possessed, for the purpose of pro-enemy act, such as praiseing, and encouraging the activities of anti-government organizations, etc.

In the same purport, the court below affirmed the judgment of the court of first instance which convicted the defendant of this part of the facts charged, on the grounds that the expressive materials of this case constitute pro-enemy pro-enemy materials and the purpose of pro-enemy or pro-enemy, etc. is recognized. However, it is just in conclusion, and there is no error of law by misapprehending the legal principles as to pro-enemy materials or pro-enemy activities beyond the limit of the free evaluation of evidence in violation of logical and empirical rules or by misapprehending the legal principles as to the purpose

2. As to the Prosecutor’s Grounds of Appeal

Article 7(1) of the National Security Act provides that “The principle of prohibition of analogical interpretation derived from this provision shall be prescribed by Acts to protect an individual’s freedom and right from the arbitrary exercise of the State’s penal authority.” Under the premise that the provision of sexual harassment should be strictly interpreted, it shall be prohibited from analogical interpretation with any content different from the original meaning expressed in a sexual provision unfavorable to the defendant (see Supreme Court en banc Decision 92Do1428, Oct. 13, 1992). In addition, Article 1(2) of the National Security Act provides that “In interpreting and applying this Act, it shall be limited to the minimum necessary to achieve the purpose prescribed in paragraph (1), and it shall not be extended or interpreted or unreasonably limited to the fundamental human rights of the people guaranteed by the Constitution.” Meanwhile, Article 7(1) of the National Security Act provides that “any person who produces, distributes or sells documents, or acquires them shall be punished by imprisonment with prison labor for not more than 7 years, or by imprisonment with prison labor for not more than 5 years.”

In light of the aforementioned legal principles and regulations, even if the operator of a private Internet posting space opened in the name of “blogs”, “Ni homepage”, “car page”, etc., did not delete another person’s writing posted in the private Internet posting space but did not delete it. However, it cannot be deemed that the operator of a private Internet posting space held another person’s writing as prescribed by Article 7(5) of the National Security Act.

Upon examining the reasoning of the judgment below in light of the above legal principles and records, we affirm the judgment of the court of first instance which acquitted the defendant as to the part that the defendant possessed 13 comments on the following pro-enemy contents in the indictment of this case as it constitutes a case where there is no proof of the crime, and there is no error of law by misapprehending the legal principles as to the "bearing" under Article 7 (5) of the National Security Act and the duties of the management authority of Internet carpets, etc.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)