[1] The requirements and criteria for recognition as "personally expressed goods" under the National Security Act

[2] The person who bears the burden of proving "the purpose of committing a false act" in relation to pro-enemy contents under the National Security Act (=public prosecutor) and the standard for determining such act

[1] Article 7 (5) of the National Security Act / [2] Article 7 (1), (3), (4), and (5) of the National Security Act; Article 308 of the Criminal Procedure Act

[1] [2] Supreme Court en banc Decision 2010Do1189 Decided July 23, 2010 (Gong2010Ha, 1696), Supreme Court Decision 2009Do320 Decided October 13, 201 / [1] Supreme Court Decision 2009Do9152 Decided July 28, 201 (Gong201Ha, 1870) / [2] Supreme Court Decision 2007Do10121 Decided December 9, 2010 (Gong201Sang, 148)

Defendant 1 and one other

Prosecutor

Attorney Seo Chang-il

Seoul Central District Court Decision 2009No411 Decided January 14, 2010

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

To be recognized as pro-enemy contents under Article 7(5) of the National Security Act, the contents of the pro-enemy contents shall be active and aggressive to threaten the existence and security of the State and the free democratic basic order, which is the legal interest protected by the National Security Act. Whether the contents of the pro-enemy contents are of such nature must 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, the form of the expressive act itself

Meanwhile, the crime of Article 7(5) of the National Security Act is the production, importation, reproduction, possession, transportation, distribution, sale, or acquisition of documents, paintings, or other expressive materials for the purpose of committing a pro-enemy act under paragraphs (1), (3), and (4) of the same Article. It is evident that the crime is a pro-enemy crime. The objective of the crime is an excessive and subjective illegal element for the establishment of a crime. As such, even if an actor recognized the nature of expressive materials and committed an act under paragraph (5) of the same Article, the element of the crime is not satisfied unless the intended act is recognized. Furthermore, the prosecutor bears the burden of proving the facts constituting the element of a crime prosecuted in a criminal trial. The prosecutor bears the burden of proving that the actor committed an act under Article 7(5) of the same Act with the knowledge that the actor was an pro-enemy act, and it is not presumed that the actor committed an pro-enemy act with the intent to commit an pro-enemy act. In this case, whether the actor was an pro-enemy act or not, taking into account various circumstances, and circumstances surrounding the actor’s’s’s 2010 and activities.

The summary of the facts charged in this case is that the Defendants, who are teachers belonging to the Seoul Uniform Office of the Korean Teachers' Union, acquired, produced, distributed, or possessed each of the pro-enemy contents of this case for the purpose of praiseing, encouraging, promoting, or aiding and abetting the activities of North Korea, which are anti

The lower court maintained the first instance court that acquitted the Defendants of all the facts charged on the ground that the Defendants could not be recognized with respect to some expressive materials of this case, and the remaining expressive materials could not be recognized as the purpose of the act of immigration prescribed in Article 7(5) of the National Security Act, taking into account the circumstances indicated in its reasoning.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the purpose of dual act under Article 7 (5) of the National Security Act, or by exceeding the bounds of the principle of

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

Justices Ko Young-han (Presiding Justice)