(영문) 광주지방법원 2015.10.29.선고 2014재노2 판결

Defendant D and the facts charged in the instant case that Defendant A, B, and C violated the National Security Act with respect to each of the facts charged in the instant case, each of the facts charged by each of the Defendants A, B, and C is acquitted.

The summary of the judgment against the Defendants is published.

Reasons

1. Progress of this case

According to the records, the following facts are recognized.

A. Defendant A, B, and C were prosecuted for violating the National Security Act (amended by Act No. 4373 of May 31, 1991; hereinafter referred to as the "National Security Act"); violation of the Assembly and Demonstration Act (amended by Act No. 4095 of March 29, 198; hereinafter referred to as the "Act"); Defendant D was under the former Martial Law (amended by Act No. 3442 of March 1981, 4, and 17; hereinafter referred to as the "Act"); Defendant D was under the former Martial Law (amended by Act No. 3442 of May 31, 1991; hereinafter referred to as the "Act"); Defendant D was under the charge of violating the National Security Act, which was by the Gwangju District Court 82

B. On September 22, 1982, the lower court convicted Defendants D, A, and C of all the facts charged, and sentenced them to a suspended sentence of three years and suspension of qualifications for one year, one year and six months of imprisonment, suspension of qualifications for Defendants B, and one year and six months of suspension of qualifications for each year. As to the lower judgment, the Defendants and prosecutors appealed with the Gwangju District Court 82No1315, Jan. 21, 1983; the Gwangju District Court rejected Defendants D’s assertion of mistake of facts and misapprehension of legal principles; and accepted the allegation of unfair sentencing; the lower judgment was reversed on the ground that the indictment was modified as stated in attached Form 3 of the facts charged against Defendants A, C, and D on the ground that there was a change in indictment as to the violation of the Act on Assembly and Demonstration as to the charges against Defendants A, B, and C, two years of suspended sentence and suspension of qualifications for each of eight months, and one year (the copy of the new civil news report that was seized from Defendant D’s confiscation), suspension of qualifications for one year and one year and one year suspension of qualifications (hereinafter referred to “the judgment”).

D. Accordingly, the Defendants appealed by Supreme Court Decision 83Do407, but the Supreme Court dismissed all appeals by the Defendant and the Defendant on May 24, 1983, and the decision on retrial became final and conclusive as it is.

E. On January 14, 2014, Defendant A, B, D, and C’s spouse filed a request for a review of the judgment subject to a retrial with the court 2014No2014. On February 9, 2015, the court recognized that “The police investigators arrested Defendant A without the warrant on March 23, 1982 and issued each of the warrant on April 6, 1982, until each of the warrant was issued on April 6, 1982 after arresting Defendant D without the warrant on April 7, 1982, and until the detention warrant was issued on April 15, 1982,” the investigator’s aforementioned act constitutes grounds for retrial under Article 124 (Unlawful Arrest and Illegal Confinement) of the Criminal Act, and the decision to commence a new trial cannot be granted upon the lapse of five years from the final and conclusive appeal under Article 124 (Unlawful Arrest and Illegal Confinement) of the Criminal Procedure Act. Accordingly, the decision to commence a new trial becomes final and conclusive.

2. Summary of grounds for appeal;

A. Defendants

1) Illegality of the investigation process

The Defendants were forced to make a false confession for about 15 days in the face of an illegal arrest and detention without a warrant, etc. from an adviser, cruel act, intimidation, and self-defense room. The Defendants failed to be guaranteed the constitutional right by means of the right to refuse to make statements, violation of the right to interview with defense counsel. During the search and seizure process, the Defendants illegally intruded upon their residence at the time of arrest or immediately after the search and seizure without a warrant, and carried out an illegal search and seizure.

2) Violation of the Enforcement Rule of the Postal Evidence

A) Among the evidence submitted by the prosecutor, the interrogation protocol, statement, and self-written statement, etc. prepared by the police and the prosecution against the Defendants are not complied with in the state of illegal arrest and detention, and since the evidence is collected accompanied by adviser and cruel act, it is not admissible in accordance with the rules of excluding illegally collected evidence under Article 308-2 of the Criminal Procedure Act. In addition, the above evidence is merely a false confession based on illegal investigation, and it is not admissible in accordance with the rules of excluding confession under Article

B) Among the evidence submitted by the prosecutor, each protocol of interrogation of the police prepared by the Nonindicted Party, such as the protocol of statement, written statement, and written statement, etc., are inadmissible for the same reason, and the cross-examination right of the original person is not guaranteed, and thus, it is inadmissible under Article 3

C) The 139 seized articles submitted by the prosecutor are inadmissible in accordance with the principle of warrant in violation of Article 308-2 of the Criminal Procedure Act.

3) Violation of the National Security Act

In light of the fact that the Defendants denied the facts charged in the lower court and the court of the trial, and that the witness 1 of the lower court made a legitimate criticism rather than the examination of the next department, and that the general public made a statement to the effect that the facts prohibited from bringing in the new civil information are also ambiguous, the Defendants’ violation of the National Security Act against the Defendants constitutes a case where there is no proof of criminal facts, and thus, they should be acquitted under the latter part of Article 32

4) In light of the fact that the witness J made a statement to the effect that he is a simple friendship meeting, the fact that Defendant D violated the Martial Law against Defendant D constitutes a case where there is no proof of criminal facts, and thus, the latter part of Article 325 of the Criminal Procedure Act should be acquitted.

5) The violation of the Assembly and Demonstration Act (defendant A, B, and C) merely constitutes a simple group of friendship, and thus, the violation of the Assembly and Demonstration Act against Defendant A, B, and C constitutes a case where there is no proof of criminal facts, and thus, a not-guilty verdict is required under the latter part of

In addition, the corresponding provision of the Assembly and Demonstration Act applied to the above Defendants was currently deleted, and the violation of the Assembly and Demonstration Act against the above Defendants was committed without any special transitional provision, and thus, it constitutes grounds for acquittal under Article 326 of the Criminal Procedure Act.

(b) Kim History;

The sentence of the lower court against the Defendants is too uneased and unreasonable.

3. We examine ex officio prior to the judgment on the grounds for appeal by the defendant A, B, C, and the prosecutor. In the trial of the court, the prosecutor changed the applicable provisions of the Act to the violation of the Act from among the facts charged against the above defendants as stated in paragraph (3) of the attached Table. Articles 14 (1) and 3 (1) 4 of the former Assembly and Demonstration Act (amended by Act No. 4095 of March 29, 1989) "Article 14 (2) and Article 3 (2) of the former Assembly and Demonstration Act (amended by Act No. 4095 of March 29, 1989)", and the prosecutor applied for changes of the Act to "Article 14 (2) and Article 3 (2) of the former Assembly and Demonstration Act (amended by Act No. 4095 of March 29, 1989)" and the above part of the facts charged was modified by granting permission, and the prosecutor still reversed the judgment of the court as to Gap and the remaining part of the facts charged.

4. Judgment on the Defendants’ assertion

A. The facts charged in this case

.1) as shown in the attached indictment.

B. The defendants' statements in the court below

1) Defendant A

On the date of the first and fifth trial of the lower court, the Defendant did not engage in any fact-finding or anti-government activities, that the said person ought to be the person in charge of the political authority. The new Korea-Japan did not know that he was acting in concert with the activities of North Korea leader, and that he was unaware of the State’s prohibition of entering the Republic of Korea. The Defendant acquired it by issuing it in the U.S., which is a well-known party to be considered as a new Korean citizen, without any arbitrarition, and thus, the crime of cutting down a false public announcement is suppression. Although L was organized, a group of friendship was a group of persons who are friendly with respect to mutual personality. There is no fact that the Defendant said that the ideology for the recovery of democracy is consistent, or that there was no fact that it was a resolution that he was to endeavor in the anti-government food work. The situation of 14 days in the

In this regard, I stated that this portion of the charges was so created, and denied the charges.

2) Defendant B

The Defendant, on the date of the first and fifth trial of the lower court, was a friendship group, and there was no fact that the N was said to have promoted anti-government consciousness to N members, or that P was taking a dictent material to Q. The Defendant did not know that P was prohibited from bringing in a new civil news report. The Defendant denied the charges by stating that R, who was said to have died at a university hospital, was the first and fifth trial of the lower court.

3) Defendant C.

The Defendant, on the date of the first and fifth trial of the lower court, was admitted to the Sdong Branch, but did not engage in counter-government activities. The Defendant did not know that the State was prohibited from bringing in the new Korean civil petition book. The Defendant denied the charges by stating that the sound assembly should not be made public.

4) Defendant D

On the date of the first and fifth trial of the lower court, the Defendant was aware of the fact that the “Sdong Branch was a prior organization to observe the Constitution of the Republic of Korea and to satisfy the legitimate growth of a political party.” Non-governmental activities were not performed. K is a pure friendship group, and there is no memory at a political assembly. The flag in possession of a new fluorial book is not read the facts or contents. The Defendant denied the charges by stating that “The Defendant, after deciding whether to violate Article 11 of the Constitution of the Republic of Korea, Article 207 of the Criminal Procedure Act, was unconstitutional, sought a trial by the Constitutional Committee”.

The following facts are acknowledged according to the defendants' legal statements of the court below and the court below, the witness T, E, U, V, W's testimony, the submission of evidence Nos. 3 through 22 of the defense counsel, and the records of this case.

1) On March 23, 1982, the police investigators illegally arrested and detained the Defendant A, Defendant B, and R without a warrant on March 24, 1982, and until each warrant of detention is issued on April 6, 1982, the police investigators arrested Defendant D without a warrant on April 7, 1982, and detained Defendant D unlawfully without any contact with the outside until a warrant of detention is issued on April 15, 1982.

2) Advisor, violence, or cruel act

A) During the aforementioned illegal detention period, Defendant A made up of five written statements of the police, seven written statements of the police (1982, March 24, 1982 to March 30, 1982), three written statements of the police, five written statements of the police, and six written statements of the police (2.25 to March 30, 1982) six times (2.24 to March 31, 1982). Defendant C prepared seven written statements of the police, six written statements of the police (2.24 to March 31, 1982), seven written statements of the police, five written statements of the suspect interrogation of the police, five times (1982.4.7 to April 14, 1982), and R prepared three written statements of the police, three written statements of the police, and three written statements of the police, respectively.

In light of the records, at the time of preparing the statement or self-statement with respect to the Defendants, the Defendants were unable to find the materials notified of the Defendants that they had the right to refuse to make a statement, and the Defendants’ family members, E, U,V, and W were unable to identify the Defendants’ whereabouts, the Defendants were forced to prepare or make a statement, such as the Defendants’ non-statement, K or L, and N, a counter-government organization, and their possession and distribution without being notified of the right to refuse to make a statement or the right to appoint a counsel.

B) Defendant A and C made a statement that police investigators did not locked in the presidential branch located in the Seo-gu, Seo-gu, Seo-gu, Gwangju, and that they moved in each item of the bridge by cutting each item on the bridge, and sought each item of the bridge. Defendant B stated that in the above presidential branch office, investigators were not locked, and the head of the bath was put in each item, and X investigators were sprinked on the right side of the ship with a cigarette. Defendant D stated that the said presidential branch office was faced with a shoulder with a monll and violence. Defendant D stated that the said presidential branch office was subject to a brush and violence.

In addition, Defendant A and B stated that if the investigator did not make a confession, the investigator died and thrown down the river and handle the traffic accident, Defendant C stated that the investigator was threatened with the death of the person.

① Since the arrest on March 3, 1982, 24, R, prosecuted with the Defendants, was confined to the Gwangju prison. After the arrest on May 15, 1982, 192, the Defendants died on May 30, 1982, when receiving medical treatment after receiving a decision to suspend the execution of detention. According to R’s will and Y’s statement, R appears to have been subject to adviser at the large public room at the time, and died as above. ② Prior to the decision to commence the retrial of this case, Defendants A and B consistently stated the same adviser at the court below and the Truth Commission, and the Defendants C prepared an advisory adviser at the time of the arrest, and stated the investigator as a witness at the time of the investigation, and stated that there was no criminal prosecution, ③ the Defendants’ family members, EV, and the witness at the time of the investigation into the police room, and the witness at the court below’s oral examination.

D. Probative value of evidence submitted by the prosecutor

1) The evidence submitted by the prosecutor to prove the facts charged in the instant case against the accused of the instant charges is admissible as evidence. ① Each interrogation protocol on the Defendants and the non-indicted R, AF, AG, AH, AH, AI, AJ, AK, AL, T, and AM (hereinafter referred to as “L members”), ② each interrogation protocol and statement on the Defendants and one members of the police preparation; ② each interrogation protocol and statement on the Defendants and one member of the members of the police preparation; ③ the protocol of the police preparation; ③ the protocol of the interrogation and statement on the Defendants and one member of the members of the police preparation; ③ the protocol of the police preparation; ③ the protocol of the testimony and statement on the A, AO, AP, AP, AS, ATS, AS, ATS, AS, B, and B; ④ each written statement and statement prepared by the Defendants and L members of the lower court; ⑤N, AP, AP, AP, Q, and B; ⑤ The evidence seizure materials (Evidence 1 through 139); and the witness of the lower court.

2) Evidence inadmissible as evidence

A) The police interrogation protocol, written statement, and written statement inside the Defendants and L members

(1) Article 312(2) of the Criminal Procedure Act applies not only to the case where the interrogation protocol of the accused prepared by investigation agency other than the public prosecutor is admissible as evidence of guilt, but also to the case where the interrogation protocol of the accused or the suspect prepared by investigation agency other than the public prosecutor is adopted as evidence of guilt against the accused. Therefore, the interrogation protocol of the suspect prepared by investigation agency other than the public prosecutor for the accused or the suspect who has co-offender relation with the accused or co-offender relation with the accused is admitted as evidence of guilt of the accused. Thus, even if the authenticity of the protocol is acknowledged by the suspect's court statement, if the accused denies the contents of the protocol on the trial date, the admissibility of the protocol is denied, and as a result, Article 314 of the Criminal Procedure Act, which exceptionally recognizes the admissibility of evidence, is not applied to the interrogation protocol of the accused

(2) In light of the aforementioned legal principles, the health team, the police protocol, the protocol of interrogation of the accused, the protocol of interrogation of the accused, and the written statement and the written statement of self-statement (the police investigation) are parts of the accused's denial of the facts charged at the original court and the court of the trial, and thus, all of them are not admissible under Article 312 (3) of the Criminal Procedure Act (it shall be deemed that the accused's establishment and voluntariness of some of his written statements, but if he denies the facts charged, it shall not be admitted to the extent that he denies the facts charged. Also, it shall be deemed that the contents of the written statement are denied. In addition, the written statement, and written statement and written statement concerning the interrogation of the police for the L members who are in relation to the accused A, B, and C are consenting to the use of them as evidence by denying the facts charged at the original court and the court of the trial of the party, and thus, all of the above Defendants shall not be admissible under Article

On the other hand, the police interrogation protocol, written statement and written statement against the defendant DE L members are admitted as evidence, there is no evidence that the person making the original statement acknowledged the authenticity of the establishment in the original trial or the court of the party, or that the investigation was conducted under particularly reliable circumstances, and since the cross-examination right of the defendant D was not guaranteed, all of the evidence against the defendant D is inadmissible in accordance with Article 312(4) of the Criminal Procedure Act.

B) Prosecution interrogation protocol against the Defendants

(1) In a case where the Defendant made a confession without voluntariness at an investigative agency prior to the public prosecutor’s investigation agency due to harsh acts, such as adviser, etc., and thereafter made a confession of the same contents even at the prosecutor’s investigation stage, even though there was no coercion of confession, such as adviser, at the prosecutor’s investigation stage, even though there was no coercion of confession before the public prosecutor’s investigation stage (see Supreme Court Decision 2010Do1788, Nov. 29, 2012).

(2) In light of the above legal principles, even though the Defendants acknowledged the establishment of each protocol of interrogation of the prosecution against the Defendants in the court of the court below, and each protocol of interrogation of the prosecution against the Defendants was established in the prosecutor's office, and even if the prosecutor did not receive adviser or cruel acts, the Defendants were subject to harsh acts such as adviser or assault from the police investigators, and consistently denied the crimes in the court of the court below and the court of the trial. ② The first protocol of interrogation of the prosecutor's office against Defendant D was prepared on April 12, 1982, during the police investigation process, and it was illegally collected evidence, taking into account the following factors: (a) the psychological pressure or psychological pressure was continued until the prosecutor's investigation stage, and there is sufficient reason to suspect that the Defendants made the confession of the same contents, and thus, each protocol of interrogation of the prosecutor's office against the Defendants cannot be admitted as evidence for conviction pursuant to Articles 308-2, 309 and 317 of the Criminal Procedure Act.

C) Seized articles

(1) The evidence collected in breach of the procedure prescribed by the Constitution and the Criminal Procedure Act is not in compliance with the lawful procedure prepared to guarantee fundamental human rights, and thus, cannot be used as evidence for conviction. The same applies to secondary evidence obtained based on this (see Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007). Meanwhile, in order for the court to view that the collected evidence constitutes an exceptional case where it can be used as evidence for conviction despite the violation of the procedure of the investigative agency, the prosecutor must prove that there are specific and special circumstances to deem such exceptional cases (see Supreme Court Decision 2008Do763, Mar. 12, 2009).

(2) According to the above legal principles, even if the police investigators acquired the evidence of this case, subparagraphs 1 through 5 of Article 6 through 12, 78, and 79 of the Evidence No. 25 through 33 constitute “AF evidence” and Article 36 through 40 of the Evidence No. 53 through 52 of the Evidence No. 54 constitute “No. 56 through 60, 80 through 97” and “No. 61 through 77,” the Defendants’ evidence No. 1 through 37 of the Act constitutes “No. 2,” “No. 13 and No. 25 of the Act” and “No. 25 through No. 97 of the Act,” and “No. 37 of the Act No. 196 of the Regulation of the Criminal Procedure No. 1 and No. 97 of the Act,” the Defendants’ evidence No. 9 and evidence No. 139 of the Decree No. 2 of the National Security Planning Bureau were seizedd by their respective Defendant No.

D) Each police statement of L members submitted by the prosecutor with respect to ① Each protocol of examination of prosecution, DN (BD bank employee), AOCK member, AP (the president of the printing office), AP (the president of the printing office), and AR (the spouse of the defendant A), the police statement of each police officer with respect to AS, AT, AT, AV, AV, AW, AY, AY, AZ, BA, and B (or more N members) as evidence, ④ each self-written statement of the police officer with respect to NN, AP, AP, Q, and B (the staff of the printing office) is consenting to use as evidence, and there is no evidence to acknowledge the authenticity of its establishment in the original court or the court of the trial, or there is no evidence to prove that the original person made an investigation under particularly reliable circumstances, and since the cross-examination of the defendants was not guaranteed, all of them are inadmissible pursuant to Article 312(4) of the Criminal Procedure Act.

3) The probative value of the remaining evidence

A) According to the defendants' statements in the court below, the defendants acquired, held, distributed, and distributed the new civil information. However, considering the following facts: (i) the defendants asserted that the new civil information in the court below and the court below did not know whether the new civil information was prohibited from being carried into the foreign civil information; and (ii) the witness I argued that the new civil information in the court below did not have an intention to act in the foreign civil information; and (iii) it is erroneous for the defendants to view that the new civil information in the court below did not act in the mutual interest but rather the newspaper in the mutual interest, if the government criticizes the government, it is not erroneous for them to view that the new civil information in the court below did not act in the mutual interest. The witness I made a testimony that corresponds to the defendants' assertion by stating that the new civil information was prohibited, and there was no evidence to acknowledge that the three civil persons had an intention to act in the foreign civil information, it is difficult to recognize the facts charged of violating the National Security Act against the defendants only by the

B) The witness J is a friendship group in the original court’s court, and Sdong Branch is not a political organization that leads M to the President of M, but is known to the democratic defense organization by the people who had no political party or activities of the National Assembly at the time, and cannot confirm specific statements related to Defendant D’s violation of the Martial Law Act. Thus, it is insufficient to recognize the facts charged in violation of the Martial Law against Defendant D solely based on the above J’s statement.

E. Whether to acknowledge the facts charged of this case

1) Of the facts charged in the case of violation of the National Security Act and the Martial Law Act, the evidence submitted by the prosecutor as seen in paragraph (d) above concerning the Defendants’ violation of the National Security Act and Defendant D’s violation of the Martial Law Act are inadmissible, and all of the evidence submitted by the prosecutor is not admissible, and the Defendants’ partial testimony at the court below, the testimony by the witness J of the court below is insufficient to recognize the above facts charged, and there is no other evidence to

2) Violation of the Assembly and Demonstration Act

As seen earlier, as stated in paragraph (2) of the same Article, the prosecutor conspireds with, and prepares for, an assembly which could cause a considerable social apprehension, such as the charge of the violation of the Assembly and Demonstration Act by Defendant A, B, and C in the trial of the political party, as stated in paragraph (3) of the attached facts charged, and changed the applicable provisions of the Act into Articles 14(2) and 3(2) of the former Assembly and Demonstration Act (amended by Act No. 4095 of March 29, 1989), and the trial was permitted.

However, according to the amended Assembly and Demonstration Act, Article 3(1)4 of the former Assembly and Demonstration Act (amended by Act No. 931, Feb. 26, 2009; hereinafter “former Assembly and Demonstration Act”) deleted “any transitional provision as to the application of penal provisions as to acts before the enforcement of the Act.” This is based on anti-sexual consideration that the previous measures subject to punishment as to an assembly or demonstration under Article 3(1)4 of the former Assembly and Demonstration Act are unfair (see Supreme Court Decision 2006Do9311, Feb. 26, 2009). Of the facts charged in the instant case, the violation of the Act against Defendant A, B, and C was conspired to make an assembly or demonstration prohibited under Article 3(1)4 of the former Assembly and Demonstration Act, and thus, it constitutes the time when punishment was abolished after the crime was committed). Therefore, the above assertion by Defendant A, B, and C is reasonable.

5. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor's allegation of unfair sentencing, and the judgment of the court below is reversed and it is again decided as follows after hearing.

The acquittal portion

이 사건 공소사실 중 각 국가보안법 위반, 계엄빕위반의 점의 요지는, 별지 공소사실 제1, 2항의 기재와 같은바, 이는 위 제4의 라, 마항에서 살펴본 바와 같이 범죄사실의 증명이 없는 경우에 해당하므로, 피고인들에 대한 국가보안법위반의 점, 피고인 D에 대한 계엄법위반의 점에 대하여 형사소송법 제325조 후단에 의하여 각 무죄를 선고한다.

Acquittal Parts

Of the facts charged in this case, the summary of each violation of the Assembly and Demonstration Act is as shown in attached Form No. 3. Thus, Article 3(1)4 of the former Assembly and Demonstration Act, which applies to each of the above facts charged, is apparent to have been repealed by the Assembly and Demonstration Act as amended by Act No. 4095 of March 29, 199, and thus, it is obvious that the violation of the Assembly and Demonstration Act against Defendant A, B, and C, respectively, is acquitted pursuant to Article 326(4) of the Criminal Procedure Act.

Publication of Judgment

In accordance with Article 440 of the Criminal Procedure Act and Article 58(2) of the Criminal Act, the summary of the judgment against the Defendants is published.