A. Scope of application under Article 7 (1) of the former National Security Act

B. The case finding the defendant not guilty on the ground that the political contents criticize the opportunism of the party who participated in the so-called three party merger which was prosecuted for violating the above legal provisions are not deemed to pose a clear danger to the national existence and security or to harm the free democratic fundamental order

A. The provision of Article 7 (1) of the former National Security Act is applied only where the act threatens the existence and security of the State or is in obvious danger to substantially endanger the fundamental democratic basic order. It refers to a provision that threatens the independence of the Republic of Korea, infringes on the territory, persuasion against the function of the Constitution and laws, and destroying and mathing the constitutional body. It is an external influence. It is dangerous to the liberal democratic basic order. It is all violent control and arbitrary control, i.e., to exclude the personal infinite or daily infinites of anti-government organizations, and to make it difficult to maintain the autonomy of the people by many opinions, and to specifically make it difficult to maintain the rule of law based on the basic principles of freedom, and thus, it refers to the respect for fundamental human rights, separation of powers, the plural system, the plural party system, the election system, the private property, and the independence of the judicial authority, etc.

Article 7 of the former National Security Act

Constitutional Court Order 89Hun-Ga113 dated April 2, 1990

Defendant

Appellant

Seoul Criminal District Court Decision 91JE5625, 91JE714 (Joint Judgment) delivered on January 6, 1992

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months and suspension of qualifications for one year.

One hundred and seventy-five days out of the detention days before the sentence of the original judgment is made shall be included in the penalty.

However, the execution of the above sentence shall be suspended for a period of two years from the date this judgment becomes final and conclusive.

The seized evidence No. 5, 6 (C. 1, 2, 1991Mo3688) shall be confiscated by the Seoul District Prosecutors' Office.

Of the facts charged in the instant case, the Defendant is not guilty that he acted in concert with the activities of South Korean Socialist Workers Union, which is an anti-government organization.

1. Summary of grounds for appeal by the defendant;

A. As to the act of concert with anti-government organization

The defendant did not know the fact that he was an anti-government organization by the "Seoul Labor Union" (hereinafter referred to as the "Labor Union"), and although the defendant's speech was merely a political speech to a regular state at the time, it did not act in concert with the activities of the Private Labor Union, the court below erred by misunderstanding the facts, or by misunderstanding the legal principles of the National Security Act, thereby finding the defendant guilty.

B. As to the violation of the Assembly and Demonstration Act

First, the assembly of April 3, 1991 did not participate by the defendant, but only in old light. Second, it was true that the defendant participated in the assembly of April 17, 1991, but at the time, the assembly was a peaceful assembly that did not present violence, but the police used violence during the process of dissolution of the assembly and did not clearly pose a direct threat to the public safety and order, and there was an error of law that the court below found the defendant guilty.

C. As to the possession of pro-enemy materials

First, in the present situation where the South-North Korean agreement is adopted and the two Koreas join the United Nations at the same time, North Korea cannot be defined as an anti-government organization. Second, the possession of books is not subject to judicial regulation, and therefore punishment is not an issue of ideas, which infringes on the freedom of thought and studies guaranteed by the Constitution, and third, the contents of the declaration of the book holder held by the defendant cannot be deemed to have engaged in the activities of North Korea that possessed it in a qualitative manner with the argument and quality of North Korea. Fourth, even though the defendant purchased the book holder who attempted to expand social science awareness and did not aim to promote North Korea, it is unlawful for the court below to convicted the defendant of the possession of the book holder.

2. Judgment on the grounds for appeal by the defendant

A. As to the violation of the Assembly and Demonstration Act

In full view of the evidence duly admitted by the court below after examining the evidence, it is sufficient to recognize the fact that the defendant participated in each assembly as determined by the court below, and the assembly on April 17, 1991 may also be recognized that the fact that the assembly was an obvious meeting that directly threatens public peace and order. Therefore, the defendant's appeal on this point is without merit.

B. As to the possession of pro-enemy materials

First, if North Korea still had no clear sign of waiver of the basic system of the Republic of Korea with our military force, it cannot be seen as an anti-government organization under the National Security Act. Thus, the defendant's assertion on this point is without merit. Second, if the freedom of learning under the Constitution is purely established for the purpose of exploration of truth, it should be protected beyond the limit of freedom and should be punished as it goes beyond the limit of punishment. Third, considering the evidence duly adopted by the court below, there is no reason to believe that the defendant's act of attacking anti-government organization was legitimate in terms of the contents of "declaration" and No. 2 of the above anti-government organization, and there is no reason to believe that the defendant's act of attacking anti-government organization was legitimate in terms of the contents of the above anti-government organization, such as the contents of the anti-government organization, and there is no reason to believe that the defendant's act of attacking North Korea's political team for the purpose of promotion of co-government organization.

C. As to the act of concert with anti-government organization

The provision of Article 7 (1) of the National Security Act is a provision to be applied under reduction only where the act threatens the existence and security of the State or is in a imminent danger that may substantially harm the basic liberal democratic order, and it threatens the existence and security of the State. The provision refers to the act of destroying and changing the internal system of our country, such as respect for fundamental human rights, separation of powers, the plural party system, election system, private property, and the economic order and the independence of judicial power, which are the economic order and the independence of judicial power, etc. When the act is unable or unclear to do so, it shall be excluded from the application of the provision.

According to the facts charged by the court below, the defendant was guilty of this case, "it is necessary to read the incentive called 1.22 malgorithm emergency resolution for the above malgorithm compensation union" and discuss with non-indicted 4 that "it is necessary to disclose the opportunism of the party in need of remuneration to the public at all times," and "the color of the democratic and opportunized party shall be what is the opportunism of the party in need of remuneration." First of all, "the opportunism of the party in need of remuneration" or "the color of the party in terms of democracy and opportunism of the party in terms of free democracy as mentioned by the defendant's opinion" or "the opportunism of the party in need of consideration of what is the opportunism of the party in question and how it should be bordered by the party in terms of free democracy and opportunism in terms of the contents of the above incentive and the contents of the defendant's remarks of the party in question.

Therefore, there is an error of misunderstanding legal principles or misunderstanding of facts in the measures that the court below found the defendant guilty on the grounds that only the defendant merely made the words such as the facts charged by the court below to be favorable to the defendant's activities in concert with the activities of the anti-government organization. Therefore, there is a ground for appeal by the defendant

Accordingly, this Court has reversed the judgment of the court below in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The criminal facts recognized by the principal source are the same as the original judgment in addition to deletion of paragraph (1) of the criminal facts at the time of the original judgment, and such criminal facts are cited as they are in accordance with Article 369 of the same Act.

1. Statements that conform to part of the facts stated in the original judgment by the defendant;

1. Each statement that conforms to the facts stated in the judgment in each protocol of examination of the accused accused prepared by the prosecutor (Seoul District Prosecutors' Office No. 91 type No. 69525 and No. 79439);

1. Each statement that corresponds to the facts stated in the judgment, among copies of each situation (Chapter 801, Chapter 805) bound in the investigation records (Chapter 805, Chapter 805) of the Seoul District Prosecutors' Office;

1. Each existing and description of the evidence of seizure Nos. 5 and 6 (Public Notice No. 5 and 2 of the Declaration, and Public Prosecutor's Office of Seoul District Court No. 3688);

1. Article applicable to criminal facts;

Articles 19(4) and 5(1)2(2) of the Assembly and Demonstration Act, and Article 7(5) and (1) of the National Security Act (amended by Act No. 4393, May 31, 1991; hereinafter the same shall apply)

2. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2, and 50 of the Criminal Act (the punishment and punishment for the violation of the National Security Act against the possession of pro-enemy materials with the largest punishment)

3. Concurrent imposition of suspension of qualifications;

Article 14 of the National Security Act

4. Calculation of days of detention;

Article 57 of the Criminal Act

5. Suspension of execution;

Article 62(1) of the Criminal Act (including the fact that the degree of participation of the accused is insignificant and his depth is pened, etc.)

6. Submeral trees;

Article 48 (1) 1 of the Criminal Act

The summary of the facts charged regarding the defendant's violation of the National Security Act is that the defendant was not aware of the fact that he had been aware of his anti-government organization's 4th anniversary of his de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto anti-government organization's de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de-government organization's 9th century, and that the defendant was aware of the de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de-government organization's de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de-government organization's de facto de facto de facto de facto de facto de facto de facto de-government organization's 9th century and that the de facto de facto de facto de facto de facto de-government organization's de facto de facto de facto.

It is so decided as per Disposition for the above reasons.

Judges Yu-chul (Presiding Judge)