[1] The meaning of and criteria for determining "advertising" and "mutual aid" under Article 7 (1) of the National Security Act in the crime of propaganda and coordination of activities of anti-government organizations, etc.

[2] Probative value of text information or its output stored in a data storage device

[1] Article 7(1) of the National Security Act as a constituent element for the crime of propaganda and coordination of activities of anti-government organizations, etc., “advertising” means to seek understanding or tolerance from an unspecified or many unspecified persons by informing them of the contents or purport of the activities of anti-government organizations, etc.; “Cooperation” refers to an act of asserting the same content as the activities of anti-government organizations, etc., or engaging in an act consistent with it, thereby complying with and joining the activities of anti-government organizations. In such a case, the term “advertising” or “mutual assistance” ought to reach the extent that there is an obvious risk of substantial harm to national existence and security

[2] In a case where a defendant or a person other than the defendant uses as evidence text information or output stored in a computer disc or other similar information storage device as evidence, this does not significantly differ from documents written or written by a defendant or a person other than the defendant in substance, and there is possibility of manipulating in the process of keeping and printing after seizure, and in principle, the hearsay rule is applied to the authenticity of its contents, and in principle, it may be used as evidence only when it is proved to be genuine by an author or a person’s statement in accordance with Article 313(1) of the Criminal Procedure Act. However, the hearsay rule is not applied in a case where the authenticity of text information stored in the information storage device is not the authenticity of the contents of text information stored in the information storage device, but the existence of text information per se directly becomes evidence.

[1] Article 7 (1) of the National Security Act / [2] Articles 310-2 and 313 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do4328 Decided September 23, 2003 (Gong2003Ha, 2118), Supreme Court en banc Decision 2003Do758 Decided April 17, 2008 (Gong2008Sang, 718), Supreme Court Decision 2012Do635 Decided May 9, 2012 (Gong2012Sang, 1021) / [2] Supreme Court Decision 99Do2317 Decided September 3, 199 (Gong199Ha, 2140), Supreme Court Decision 2007Do7257 Decided December 13, 2007 (Gong2008Sang, 80)

Defendant 1 and two others

Defendants and Prosecutor

Law Firm Busan, Attorney Jeong Jae-sung

Busan District Court Decision 2009No707 Decided February 17, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As a constituent element of the crime of propaganda and concert with an anti-government organization under Article 7(1) of the National Security Act, the term “pro-government organization” means to seek understanding or tolerance from many and unspecified persons by informing them of the content or purport of the act, and the act that constitutes an anti-government organization with the same content as the propaganda, inciting or complying with the above act. In such a case, the term “pro-government organization” or “help” ought to reach the extent that there is an obvious danger that the act may cause substantial harm to the nation’s existence and security or democratic fundamental order, and the purpose of producing and distributing pro-enemy materials is to establish an anti-government organization’s pro-government organization’s pro-enemy act as well as to prove the existence and security of the nation’s pro-enemy act as well as facts that constitute an anti-government organization under Article 7(5) of the National Security Act. In addition, in order to recognize as an anti-government organization under Article 7(1) of the same Act, the overall purpose of producing and selling pro-enemy materials should be determined separately as an act.

Meanwhile, in a case where a defendant or a person other than the defendant uses as evidence text information or output stored in a computer disc or other similar information storage device as evidence, the hearsay rule is applied to the authenticity of its content in light of the fact that it is not much different from the written statement or its statement prepared by the defendant or a person other than the defendant, and that there is possibility of manipulating in the process of keeping and printing after seizure, and that the opportunity for cross-examination is not guaranteed. Accordingly, in principle, it may be used as evidence only when it is proved to be genuine by the statement of the author or the person who made the statement under Article 313(1) of the Criminal Procedure Act. However, the hearsay rule is not applied in a case where the authenticity of text information stored in the information storage device is not the authenticity of the content of the text information, but the existence of text information directly becomes evidence (see Supreme Court Decision 9Do2317, Sept. 3, 199).

B. The summary of the facts charged of this case is that the Defendants, as teachers belonging to the Unification Committee of the Korean Teachers' Union (hereinafter referred to as the "Korean Teachers' Union"), held a unification school for the teachers of the ○○○ branch of the Korean Teachers' Union (hereinafter referred to as the "former Teachers' Union"), and produced and distributed a “unit of unified School Data”, which is an expression of the North Korea’s historical perception that praises North Korea’s sovereignty, such as Kim Il-il and Masan for the purpose of promoting or assisting in the activities of North Korea, which are anti-government organizations, and the contents that either expropriates or justify or U.S. the government lines of North Korea, such as “military politics,” and led the teachers attending the unification school to publicize the activities

In light of the evidence adopted by the first instance court, the court below determined that the "data collection of the Uniform School" produced and distributed by the Defendants constituted pro-enemy under the National Security Act, and determined that the Defendants had intent to promote and aid the activities of anti-government organizations under Article 7 (5) of the National Security Act and to promote and aid the activities of anti-government organizations under Article 7 (1) of the same Act, by comprehensively taking account of the circumstances acknowledged by the above evidence, and found the Defendants guilty of

C. (1) According to the reasoning of the lower judgment and the record, the lower court maintained evidence of the first instance court; (2) investigation reports (the results of meetings of the Uniform Committee on September 2); (3) investigation reports (the results of meetings of the ○○○○○ Branch (Quasi-Chapter) 11); (4) investigation reports [the results of meetings of the Nationwide Branch 12]; (3) investigation reports (the data on the operation of the ○○○ Branch 13 Group 2); (4) investigation reports (the ○○○○ Branch 10th Session 2) investigation reports (the Nation Association 10th 10th ○○○ Branch 2); (4) investigation reports (the results of meetings of the Nation Association 2006 branch 2); (4) investigation reports; (2) investigation reports (the Nation Association 2006 branch 2) investigation reports; (3) investigation data; (4) investigation reports; (4) investigation reports; and (4) investigation data attached to the Nation Association 20000 branch -2) investigation data.

(2) According to the reasoning of the judgment below and the evidence duly adopted by the first instance court and maintained by the court below, each of the accompanying materials is not a fact requiring proof of the authenticity, but a document itself constitutes a pro-enemy pro-enemy, or it is necessary to prove that the attached materials obtained by the investigation agency at Defendant 2’s residence are the same as the existing evidence discovered at the office of ○○○○○○ Branch, etc. of the National Assembly, etc., and thus, contain the same content constitutes evidence, which is a fact requiring proof, and it constitutes evidence that the existence of the material itself constitutes a fact requiring proof, and it is acknowledged that Nonindicted 2, a police officer of the above investigation report, was present at the court of first instance and make a statement as to the authenticity on the date of its establishment.

In light of the above legal principles as to the admissibility of evidence, each of the above attached materials cannot be deemed as evidence to which the hearsay rule applies, and there is no reason to reject the admissibility of evidence, and each of the above investigation reports is a document in summary and explanation of the process of obtaining such attached materials and its contents, etc., and it is proved by the testimony of the maker, and thus, it can be admitted as evidence pursuant to Article 313(1) of the Criminal Procedure Act. Therefore, the measures taken by the court of first instance that maintained each of the above investigation reports by the court below as evidence did not err in violating the rules of evidence law

(3) Meanwhile, in the case of the remaining investigation reports among the above evidence, if the court below adopted the relevant materials as evidence on the basis of the fact that the contents of the materials attached to the court below are true, and on this premise, based on the premise that the court below adopted each investigation report as evidence of conviction against the Defendants, and recognized the circumstances as to the Defendants’ act and relation with ○○○ branch of the National Assembly of Democratic Workers, it cannot be deemed lawful. In light of the legal principles as to admissibility of evidence as seen earlier, the materials attached to each investigation report above cannot be admitted as evidence under the hearsay rule, and the investigation report, which is merely a summary and explanation of the contents of the evidence without admissibility, cannot be deemed as evidence of guilt.

However, even if the court below excluded the aforementioned evidence or the defendants' acts and relations with ○○○○○○ branch of the National Labor Council, in light of the legal principles as to the interpretation of Article 7(1) and (5) of the National Security Act as seen earlier, the court below affirmed the court below's determination that the "data collection of the Unification School" of this case constitutes a pro-enemy organization under Article 7(5) of the National Security Act, and that the defendants' acts of forcing the participants of the Unification School to publicize or assist the anti-government organization under Article 7(1) of the same Act.

Furthermore, according to the reasoning of the lower judgment and the evidence duly admitted as above, it is recognized that the Defendants produced and distributed a “unit of data at a unification school” to use it as teaching materials for the lecture of the unification school corresponding to the activities of anti-government organizations. Examining this in light of the above legal principles, the lower court determined that the Defendants were subject to the dual act of Article 7(5) of the National Security Act, and that all of the charges charged are justified and acceptable.

Ultimately, even if the court below erred by taking the remaining investigation report as evidence of guilt against the Defendants and thereby finding an indirect fact, it cannot be said that the judgment affected the conclusion of the judgment.

(4) Therefore, contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the facts in violation of the rules of evidence or exceeding the bounds of the principle of free evaluation of evidence by violating the rules of logic and experience.

2. As to the Prosecutor’s Grounds of Appeal

Since the confiscation under Article 48(1) of the Criminal Code is voluntary, the issue of whether to confiscate even an article that meets the requirements of confiscation is left to the court’s discretion (see Supreme Court Decision 2000Do515, Sept. 4, 2002, etc.).

According to the reasoning of the judgment below and the records, the court of first instance found Defendant 2 guilty of the facts charged against Defendant 2 and sentenced the above Defendant to a suspended sentence of two years for ten months. Defendant 2 appealed against mistake of facts or misapprehension of the legal principle and unfair sentencing, etc., and the prosecutor also appealed on the ground that it was erroneous that Defendant 2 did not confiscate the books, etc., which were too less narrowly and confiscated, of the first instance sentence. The court below rejected Defendant 2’s assertion of mistake of facts or misapprehension of the legal principle. However, the court below rejected Defendant 2’s ground for appeal on unfair sentencing, dismissed the first instance judgment and sentenced the said Defendant to a suspended sentence of one year for six months, and sentenced the above Defendant to a suspended sentence for six months, and did not separately sentence the above books, etc. confiscation.

Examining the above facts in light of the legal principles and records as seen earlier, insofar as the court below accepted the grounds for appeal on unfair sentencing by Defendant 2, reversed the judgment of the court of first instance, and sentenced the sentence again, and did not take measures for forfeiture of the above book, etc. pursuant to Article 48(1) of the Criminal Act, the propriety of the prosecutor’s grounds for appeal as to the above book, etc. should also be deemed as already judged. Meanwhile, it is unclear whether the above book, etc. satisfies the requirements for forfeiture under Article 48(1) of the Criminal Act, and even if the above requirements were met, it cannot be deemed that the failure of the court below to sentence forfeiture on the above book

Therefore, contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the provisions of Article 369 of the Criminal Procedure Act concerning the method of writing the appellate court’s decision, or by misapprehending the legal doctrine on the confiscation provision under Article 48(1) of the Criminal

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 Lee Sang-hoon (Presiding Justice)