A. Whether the National Security Act is a law that infringes on the fundamental rights of the people guaranteed by the Constitution

B. Whether North Korea is an anti-government organization, and whether it violates the principle of peaceful unification under the Constitution to regard North Korea as an anti-government organization

C. Whether Article 2 of the Addenda to the National Security Act violates the principle of no punishment without prison labor and the principle of no punishment penalty

D. Requirements for establishing crimes such as communications under the same Act and Article 8(1) of the former National Security Act (amended by Act No. 4373 of May 31, 1991)

E. Requirements for establishing the crime of receiving money and valuables under Article 5(2) of the above Act

F. The meaning of national secrets under Article 4(1)2 Item (b) of the National Security Act, Article 4(1)2 Item (b) of the former National Security Act (amended by Act No. 4373 of May 31, 191)

(g) The case holding that an act of application for escape from North Korea under the Inter-Korea Exchange and Cooperation Act constitutes a preliminary crime of escape under the National Security Act;

(h) Whether the establishment of the crime of diving and escape under Article 6 (2) of the same Act requires escape to an area under the control of an anti-government organization or the escape from such area;

A. The National Security Act does not infringe on the fundamental rights of the people guaranteed by the Constitution, as long as the act under the same Act is applied in a case where it may endanger the existence and security of the State or endanger the liberal democratic fundamental order. Thus, the same Act constitutes the limitation on the guarantee of such fundamental rights.

B. Even after the entry into force of the South-North Korean agreement and entry into force of the United Nations, the North Korean group still does not seem to have fully renounced the democratic basic system of the Republic of Korea. While there are no democratic changes inside the agreement, the North Korean group continues to capture the collapse of the free democratic system of the Republic of Korea through the threat of force against the Republic of Korea, various propagandas, inciting, and so-called anti-government organizations without any democratic changes. As such, the North Korean group is an anti-government organization as the maximum practical harm group against the existence, safety and free democratic basic order of the State, which is protected by the law of the National Security Act, and North Korea as an anti-government organization,

C. According to Article 2 of the Addenda to the National Security Act, the former National Security Act (amended by Act No. 4373 of May 31, 191), which excludes the provisions of Article 1(2) of the Criminal Act, is a special provision under Article 8 of the same Act, which violates the principle of no punishment without law under Article 12 of the Constitution and the principle of no punishment without prosecution under Article 13 of the same Act.

D. The crime of meeting, communication and liaison under Article 8(1) of the current National Security Act or the former National Security Act (amended by Act No. 4373 of May 31, 191) is established with the knowledge of the fact that it would be the benefit of an anti-government organization, or with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, and thus, it is established with a meeting, communication or liaison with its members or persons under its order. It does not require a prior intention between the meeting, unless it is a meeting at a very different level from ordinary and private level, unless it is a meeting at a completely different intention. It is not necessarily necessary to discuss or determine certain matters, but it is sufficient to acknowledge that it is a group in a series of activities for the accomplishment of the purpose, and it is sufficient to establish a crime of meeting with a member of an anti-government organization or a person who is subject to its order.

E. The crime of accepting money is established by accepting money from a member of an anti-government organization or from a person who received an order, with the knowledge of the fact that the receipt of money is a member of an anti-government organization or a person who received such order, or with the knowledge of the fact that it may endanger the existence, safety, or democratic fundamental order of an anti-government organization. It is not limited to the case where the acceptance amount or value, as well as purpose, does not intend to harm the Republic of Korea.

F. State secrets under Article 4 (1) 2 (b) of the current National Security Act and state secrets under Article 4 (1) 2 (b) of the former National Security Act (amended by Act No. 4373 of May 31, 191) include all state secrets related to politics, economy, society, culture, etc., not only as state secrets but also as state secrets for the benefit of the Republic of Korea because they are not confidential or verifiable to anti-government organizations, and if they include all state secrets related to the interests of the Republic of Korea, such as politics, economy, society, culture, etc., and if they are widely known through legitimate procedures in the Republic of Korea, it is advantageous to North Korea, which is anti-government organizations.

G. The provision of the National Security Act is excluded from the application to the extent that it is justified with respect to the activities aimed at inter-Korean exchange and cooperation under Article 3 of the Inter-Korean Exchange and Cooperation Act. However, the application to North Korea by the defendant under prior contact with the North Korean colon may have the purpose of inter-Korean exchange and cooperation among other co-Korean people who are not aware of such fact. However, in relation to the defendant himself, it cannot be deemed that the application to North Korea under the above Act is aimed at inter-Korean exchange and cooperation under the above Act. Thus, the application to North Korea by the defendant constitutes the reserve for escape under the National Security Act.

(h) The crime of escape or diving under Article 6 (2) of the same Act shall not require escape from, or escape from, an area under the control of an anti-government organization.

A. Article 37 of the Constitution, Article 1 of the National Security Act, Article 1 of the former National Security Act (amended by Act No. 4373 of May 31, 191), Article 2 of the National Security Act, Articles 2 and 4 of the former National Security Act (amended by Act No. 4373 of May 31, 1991); Articles 12 and 13 of the Constitution of the Republic of Korea; Articles 1(2) and 8(d) of the Criminal Act; Article 8(1) of the National Security Act; Article 5(2) of the National Security Act; Article 5(2) of the former National Security Act; Article 5(1) of the former National Security Act (amended by Act No. 4373 of May 31, 191); Article 5(2) of the former National Security Act (amended by Act No. 4373 of May 31, 191); Article 5(2)4(1)6(3)7) of the former National Security Act (amended by Act No. 197(1)4)1).

A.B.C. Supreme Court Decision 93Do1730 delivered on September 28, 1993 (Gong1993Ha, 3008). (b) Supreme Court Decision 92Do1211 delivered on August 14, 1992 (Gong1992, 2711). (g) Supreme Court Decision 93Do2304 delivered on October 8, 1993 (Gong1993, 1025). Supreme Court Decision 91Do3279 delivered on March 31, 1992 (Gong1992, 1482, 1999). (g) Supreme Court Decision 92Do2304 delivered on October 27, 1992 (Gong1992, 1482, 199, 294Do196989 delivered on March 29, 209).

Defendant

Defendant

Attorney Han-han et al.

Seoul High Court Decision 93No834 delivered on June 17, 1993

The appeal is dismissed.

The defendant and defense counsel's grounds of appeal are also examined.

1. Regarding the assertion that North Korea is not an anti-government organization, or that each act of the defendant does not pose a risk to the national existence, security or free democratic fundamental order, the National Security Act does not infringe on the fundamental rights of the people guaranteed by the Constitution (see, e.g., Supreme Court Decision 92Do1211, Aug. 14, 192) and the same Act does not constitute the limit to the guarantee of such fundamental rights.

Even after the entry into force of the South-North Korean agreement and joining the United Nations, the North Korean group still does not seem to have shown clear signs that it has renounced completely the democratic basic system of the Republic of Korea. Since the collapse of the free democracy system of the Republic of Korea is continuously imposed by the threat of force and various propaganda, inciting and promoting the unification of the Republic of Korea without any democratic change inside it, it is the opinion of the member who is an anti-government organization for the existence of the country, safety and the maximum practical harm to the fundamental order of free democracy. Since North Korea is regarded as an anti-government organization, it cannot be in conflict with the principle of peaceful unification under the Constitution (see Supreme Court Decision 92Do1815, Feb. 9, 193; 92Do1211, Aug. 14, 1992; 91Do3279, Mar. 31, 1992; and 2001Do3279, Feb. 31, 2002).

The judgment of the court below is just in holding that the defendant was beneficial to North Korea or its members in each act of this case, or that it was aware of the fact that it would endanger the existence of the State and democratic fundamental order, and there is no illegality such as misapprehension of the legal principles of the Constitution and the National Security Act and mistake of facts against the rules of evidence. There is no reason for discussing

2. As to the assertion that Article 2 of the Addenda to the National Security Act violates the Constitution

According to Article 2 of the Addenda to the National Security Act, the former National Security Act (amended by Act No. 4373 of May 31, 1991), which excludes the provisions of Article 1(2) of the Criminal Act, is a special provision under Article 8 of the Criminal Act that excludes the provisions of Article 1(2) of the Criminal Act, and cannot be said to be a violation of the principle of no punishment without law under Article 12 of the Constitution and the principle of no punishment without law under Article 13 of the Constitution (see Supreme Court Decision 92Do2068, Oct. 27, 1992), and this part of the appeal is without merit.

3. As to the part on the admissibility of the suspect interrogation protocol against the defendant prepared by the prosecutor

Review of records:

Although the defendant acknowledged that the interrogation protocol of the defendant prepared by the prosecutor was established on the fifth and the sixth trial date of the first instance court, he denied his discretion. Even if the defendant was forced to make a statement in the National Security Planning Department, considering the defendant's recovery of the statement, the place, date, contents of the statement in the prosecutor's office, there is no reason to suspect the voluntariness of the confession statement in the prosecutor's office, and there is no other evidence to suspect that the defendant continued the detained psychological state due to coercion in the National Security Planning Department as argued by the prosecutor at the time of making a statement in the prosecutor's office. This is without merit.

4. As to individual elements of a crime

(a)the point of meetings, communications, and communications;

Article 8 (1) of the current National Security Act or Article 8 (1) of the former National Security Act provides that the crime of meeting, communication, and communication shall be established with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, or with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order. Thus, a meeting, communication, or communication shall be established with the members of the organization or the persons who received the order. It does not require a prior common intent between the members, unless a meeting is a meeting at a completely different level from ordinary and private level, and it is not necessary to discuss or determine certain matters, and it does not necessarily need to discuss or determine certain matters, but it is recognized as a meeting in the course of a series of activities for the accomplishment of the purpose, and it is sufficient to acknowledge it as a meeting in the course of the accomplishment of the purpose, and the crime of meeting between the members of the organization or the persons who received the order shall be established (see Supreme Court Decision 90Do1285, Aug. 24,

In the same purport, the court below was just in finding the defendant guilty of all the remaining facts charged, including meetings under paragraphs (1) and (2) of the first trial and meetings, communications, and liaison with North Korean colons or non-indicteds, and there is no illegality such as misunderstanding of legal principles and misunderstanding of facts against the rules of evidence, as alleged in the first trial.

(b) Receipt of money and valuables;

The above crime is established by the receipt of money from a member of an anti-government organization or a person who has received an order with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order. It is not limited to the case where not only the amount or value of an anti-government organization, but also the purpose thereof, but also the case where there is an intention to harm the Republic of Korea (see, e.g., Supreme Court Decisions 91Do2495, Dec. 24, 1991; 90Do646, Jun. 8, 199; 85Do1367, Dec. 10, 1985; 85Do1367, Dec. 10, 1985). The court below's first trial that the defendant's receipt of goods under paragraph (57) constitutes a crime of receiving money and valuables, and there is no serious error of law such as misunderstanding of legal principles or guidance of mistake of facts, etc. concerning other acts of receiving money and valuables.

C. The production and distribution of representations

In light of the records, the defendant's argument that North Korea as part of the public relations activities in South Korea includes the contents of active criticism against North Korea's large-scale policies and unification policies, etc., and considering the defendant's career, education level, etc., the defendant's production and distribution of the above expressive materials for the purpose of acting in North Korea with the knowledge that the defendant's activities in North Korea would endanger the nation's existence, safety, and free democratic basic order, the same purport of the judgment below is correct, and there is no illegality such as misunderstanding of the legal principles of the Constitution and the National Security Act and misunderstanding of facts, etc.

(d) Collection, detection, leakage, etc. of State secrets;

Article 4 (1) 2 (b) of the current National Security Act and the state secrets under Article 4 (1) 2 (b) of the former National Security Act are all information and data necessary for the benefit of the Republic of Korea that it is not confidential or verifiable against anti-government organizations. It includes all the state secrets such as politics, economy, society, culture, etc., not limited to state secrets in the first sense, and it is widely known through legitimate procedures in the Republic of Korea. Even if it is widely known public information through legitimate procedures in the Republic of Korea, it is advantageous to North Korea who is an anti-government organization, and it is also a state secret (see Supreme Court Decision 92Do2068 delivered on October 27, 1992; Supreme Court Decision 90Do646 delivered on June 8, 190, etc.). In light of the records, it is just to accept the judgment of the court below that the defendant collected, detected and divulged all the information and the state secrets fall under the State secrets, and it is also justified to understand the legal principles as to the state secrets.

(e) Points of escape reserve;

The provision of the National Security Act shall be excluded from the application to the extent that it is justified with respect to the activities aimed at inter-Korean exchange and cooperation under Article 3 of the Inter-Korean Exchange and Cooperation Act. However, in light of this part of facts duly recognized by the court below and the court of first instance, the application for North Korea by the public party led by the defendant under the prior contact with the North Korean public workers may be deemed to have a purpose of inter-Korean exchange and cooperation, apart from the fact that the defendant's prior contact with the North Korean public workers may not be deemed to have a purpose of inter-Korean exchange and cooperation. However, in relation to the defendant himself, it cannot be said that the defendant's relationship with him is for the purpose of inter-Korean exchange and cooperation under the above Act. Thus, even though the defendant applied for North Korea under the above Act, the defendant's escape and diving under Article 6 (2) of the National Security Act does not require escape to an area under the control of the anti-government organization, or the defendant's entry into the Republic of Korea for the purpose of fulfilling its departure order, the court below's decision is justified.

5. As to the assertion of unfair sentencing

Examining the various circumstances that are conditions for sentencing by the record, it is not determined that the sentence of imprisonment with prison labor, etc. sentenced to the defendant is too unreasonable. This is also groundless.

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

Justices Park Jong-ho (Presiding Justice)