(영문) 서울중앙지방법원 2018.9.20. 선고 2018재고합12 판결

Defendant is an anti-state organization which is an unlawfully organized anti-state organization for the purpose of benefiting the Government and impairing the State, and despite having been well aware of the fact that it establishes the hostile unification of the Republic of Korea as the basic goal and engages in activities for the accomplishment of that objective;

A. At around 13:00 on June 1976, D and E (the age of 48) from the house of D (the age of 48) located in Yeongdeungpo-gu Seoul Metropolitan Government C at around 13:0 (the age of 13:0) the North Korea's real ability of each individual is better than us, and the population of us is much different. However, because the F gives special and special consent, military power is likely to epiced by North Korea", "G is epiced by North Korea," and "G is epiced by North Korea," thereby encouraging the activities of North Korea's organization at the same time, and distort facts;

나. 1976. 7. 20. 20:00경 서울 관악구 H에 있는 I 밴드실에서 J(20세)에게 "나는 현정부에 반대한다. K가 우리를 도와주지 않을 것이다. 우리나라 정치는 반독재와 비슷하다"라고 발설하여서 사실을 왜곡하여 전파하고,다. 1977. 3. 말 일자불상 11:00경 서울 영등포구 L 소재 피고인의 자취방에서 E에게 "지금 판문점에서 미군 놈이 겁이 나서 쩔쩔매고 있다. 미군이 철수하면 전쟁이 일어날 것이다. 이북의 정규군은 우리보다 우세하다. 우리가 인구는 많지만 이북의 정규군은 개개인의 실력이 우리보다 우세하다고 보아야 할 것이다"라고 하여서 반국가 단체인 북괴의 활동을 고무 찬양하여 동 단체를 이롭게 함과 동시에 유언비어를 날조 유포하였다.

2. Progress of this case

A. On October 28, 197, the Seoul District Criminal Court found the Defendant guilty of the charges in this case and sentenced the Defendant to two years of imprisonment and suspension of qualifications for the purpose of national security and the protection of public order by applying Articles 7(7) and (1)(a) and Article 4(1) of the Antipublic Law (hereinafter “Emergency Measure No. 9”) (Seoul Criminal Court Decision 77Da670 delivered on October 28, 197, hereinafter “Seoul Criminal Court Decision on Review”).

B. On February 24, 1978, the Defendant and the Prosecutor appealeded as Seoul High Court (Seoul High Court 77-1824), and the above court rendered a ruling dismissing the appeal by the Defendant and the Prosecutor on February 24, 1978, and on the same day, the Defendant renounced the appeal, and the judgment subject to a retrial became final and conclusive at that time. On March 23, 2018, the Prosecutor rendered a request for retrial pursuant to Article 424 subparag. 1 of the Criminal Procedure Act on the grounds that there was a ground for retrial in the judgment subject to a retrial that rendered a judgment of conviction on the grounds that the Emergency Measure No.9 was unconstitutional and null and void, and the said ruling on commencing a retrial became final and conclusive as is.

3. Scope of the trial;

Where it is recognized that there exist grounds for request for retrial only for some of the facts constituting an indivisible crime in a final and conclusive judgment convicting of several concurrent crimes, the final and conclusive judgment shall be deemed to have been rendered, and the decision to commence retrial is bound to be made as to the whole of the judgments. However, as to the facts constituting an offense for which there is no ground for retrial under the nature of the retrial system, which is an emergency remedy, the effect of the decision to commence retrial is to include the part in the trial formally, and thus, the retrial court cannot reverse the judgment of conviction by re-examination. However, since a new sentence should be imposed on that part, it is only possible to hold a trial only to the extent necessary for sentencing (see, e.g., Supreme Court Decision 2001Do1239, Jul. 13, 2001). The same applies to cases where it is deemed that there is a ground for request for retrial only for a part of the final and conclusive judgment convicting one of those facts constituting an indivisible crime, including the decision to commence retrial, if it is more reasonable to acknowledge the new ground for retrial as a new person for retrial.

According to the records, around 08:00 on August 16, 1977, the defendant was investigated by the police without a warrant on August 19, 197 when he was detained, and the detention warrant was executed on August 14:00 on the same day. In light of the fact that the above detention warrant was not issued within 48 hours from August 16, 197, the date when the defendant was committed, the arrest and detention of the defendant constitutes a case where a judicial police officer committed a crime (illegal confinement) related to his duties. Thus, the crime of violating the public law of the defendant also constitutes a ground for retrial prescribed in Articles 420 subparag. 7 and 422 of the Criminal Procedure Act. Accordingly, this court may determine not only the violation of the Emergency Decree No. 9 recognized as a ground for retrial in the retrial decision, but also the crime of violation of the public law, including the judgment of conviction and acquittal, and also the judgment of conviction and acquittal.

4. Determination

A. Violation of Emergency Measure No. 9

1) Article 9 of the Emergency Decree issued based on the Emergency Decree stipulated in Article 53 of the former Constitution (wholly amended by Act No. 1980, Oct. 27, 1980; hereinafter “former Constitution”) is an infringement on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the requirements for triggering the Emergency Decree. Thus, even before the Emergency Decree No. 9 was rescinded or invalidated, it is unconstitutional and invalid as it is in violation of the Act, and further, it is obvious that it is unconstitutional and invalid in light of the current Constitution that has the provision on guaranteeing the fundamental rights infringed by Emergency Decree No. 9 (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

In cases where a penal law has been declared as unconstitutional or invalid by the court, the court shall render a verdict of innocence for a prosecuted case against which a public prosecution has been instituted by applying the pertinent law in accordance with Article 325 of the Criminal Procedure Act. Furthermore, even if the penal law has been repealed, if the ‘dispensing’ was based on the statutes which have not been effective as they were in violation of the Constitution from the beginning, the defendant's case constitutes grounds for innocence (see Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

2) In light of the aforementioned legal principles, the violation of each of the above Emergency Measure No. 9 constitutes a case where the above Emergency Measure No. 9, which is the applicable law, is unconstitutional and invalid, and thus does not constitute a crime.

B. Violation of each anti-public law

1) Article 4(1) of the former Public Law (amended by Act No. 318, Dec. 31, 1980; Act No. 318; Act No. 1050, May 31, 198; Act No. 3200, May 31, 198) is established when an act that helps anti-government organizations to praise, encourage, aid, or otherwise commit an act. The content of the act must be objectively able to benefit of anti-government organizations, and subjectively harming anti-government organizations (see, e.g., Supreme Court Decision 82Do2658, Feb. 22, 1983; 2006Do10163, May 31, 1991; 2000Do14777, May 1, 200) is an act that threatens the fundamental order of free democracy, such as the Constitution and the Constitution, and thus, constitutes a violation of the fundamental order of free democracy.

2) First of all, among the evidence submitted by the prosecutor, the interrogation protocol of the defendant against the prosecutor and the interrogation protocol of the second interrogation protocol of the defendant against the defendant on the second interrogation protocol of the defendant on August 22, 1977 contain statements that correspond to part of the facts charged by the defendant. However, in the case of the second interrogation protocol of the suspect interrogation protocol of the defendant against the defendant on August 22, 197, it is reasonable to see that the defendant made an unvoluntary statement in the state of illegal confinement from August 16, 197 to the prosecution, and then the defendant continued to make a statement without arbit

3) Meanwhile, on October 7, 1977, the Defendant made a statement to the effect that he was present as a witness on the second day of the instant case on October 21, 1977, on the following grounds: (a) on the first day of the trial of the Seoul Criminal Court case No. 77Gohap670, the Defendant made a statement, excluding the part of "F," "G, Doc, Doc, Doc, Doc, Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc. Doc.

However, according to the Defendant’s statement stated in each of the facts charged, most of them appears to have naturally expressed his opinion on the international political situation, political situation, economic situation, and international political situation of the Republic of Korea at the time, and furthermore, in dialogue with persons who have a friendship with them. Unlike the above, the Defendant’s statement alone does not appear to have objectively recognized that the crime under Article 4(1) of the former Anti-Governmental Act is an interest of anti-government organizations or is against anti-government organizations as a requirement for establishing a crime under Article 4(1) of the former Anti-Governmental Act. Moreover, even if it is insufficient to view that the Defendant’s opinion to actively respond to and join the activities of anti-government organizations, it is difficult to deem that there is an obvious risk of undermining the national existence and

4) Therefore, each of the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant, even though having knowledge of the fact that it may endanger the existence and security of the Republic of Korea or democratic fundamental order as indicated in this part of the facts charged, he/she could have inflicted upon anti-government organizations by praiseing, encouraging, and acting in concert therewith. There is no other evidence supporting

5. Conclusion

Therefore, pursuant to the former part of Article 325 of the Criminal Procedure Act that each of the facts charged in the instant case constitutes a violation of the Emergency Decree No. 9, each of the following facts charged shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the Defendant pursuant to Article 440 of the Criminal Procedure Act and Article