[1] The requirements for recognizing as a “personal expression” under the National Security Act, and the standard for determining whether there is an objection to the expression

[2] Whether a crime under Article 7(5) of the National Security Act constitutes a so-called "purpose crime" (affirmative), and the person who bears the burden of proving that there was "the purpose of committing the act in question" (=the prosecutor) and the method of proving the act

[3] The meaning of "distribution act" under Article 7 (5) of the National Security Act

[4] Intentional intent required for the establishment of an accessory crime

[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 / [3] Article 7 (5) of the National Security Act / [4] Articles 13 and 32 of the Criminal Act

[1] [2] Supreme Court en banc Decision 2010Do1189 Decided July 23, 2010 (Gong2010Ha, 1696), Supreme Court Decision 2010Do12836 Decided March 28, 2013 / [3] Supreme Court Decision 90Do1586 Decided September 25, 1990 (Gong190, 2229) / [4] Supreme Court Decision 2003Do382 Decided April 8, 2003 (Gong2003Sang, 1134), Supreme Court Decision 2003Do6056 Decided April 29, 2005 (Gong2005Sang, 887)

Defendant

Defendant and Prosecutor

Law Firm Han, Attorneys Cho Min-soo et al.

Seoul High Court Decision 2016No295 decided October 28, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. (1) In order to be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the existence and security of the nation, which is the legal interest protected by the National Security Act, and the democratic fundamental order. Whether the expressive materials have the same aptitude should 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, and matters related to the outside

(2) Meanwhile, the crime of Article 7(5) of the National Security Act is the production, import, reproduction, possession, transportation, distribution, sale, or acquisition of documents, paintings, or other expressive materials for the purpose of committing a pro-enemy act under Article 1, 3, and 4 of the National Security Act, and if the prosecutor intends to recognize the establishment of a crime under Article 7(5) of the National Security Act, he/she must prove that the actor had the intent to commit a pro-enemy act. In this case, it cannot be presumed that the actor committed an act under Article 7(5) of the National Security Act with the intent to commit a pro-enemy act solely based on the fact that the actor was aware that he/she was a pro-enemy act and committed an act under Article 7(5). However, if there is no direct evidence to prove that the actor had the intent to commit a pro-enemy act, it shall be determined by the Supreme Court en banc Decision 200Do1381, Feb. 13, 2008.

B. Examining the reasoning of the judgment below in light of the aforementioned legal principles, the court below was just in finding the Defendant guilty of all the facts charged (excluding the part not guilty). Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on pro-enemy contents or pro-enemy act under Article 7(5) of the National Security Act

2. As to the Prosecutor’s Grounds of Appeal

A. Ground of appeal No. 1

(1) The part on the “distribution” and “helping” of pro-enemy contents

“Distribution” under Article 7(5) of the National Security Act refers to the act of distributing pro-enemy contents to many and unspecified persons and having knowledge of such distribution (see Supreme Court Decision 90Do1586, Sept. 25, 1990). Meanwhile, aiding and abetting and abetting and aiding and abetting and abetting and aiding and abetting and abetting the principal offender to commit a crime is an act of accessory a crime that facilitates the principal offender’s commission, so the principal offender should have the principal offender’s intent to assist and abetting the principal offender to commit the crime and that the principal offender’s act constitutes elements (see Supreme Court Decision 2003Do382, Apr. 8, 2003).

In light of the circumstances indicated in its holding, the lower court determined that the Defendant’s act of distributing pro-enemy materials cannot be deemed to have distributed the instant 169 notices solely on the ground that the Defendant’s act of distributing pro-enemy materials to the Defendant’s account was merely posted on the Defendant’s Twitter account on the sole basis of the “○○○○○○○○○○○” Twitter account, and that the Defendant’s act of selling the said account was not posted on the third party’s Twitter account. Thus, the lower court determined that the Defendant’s act of distributing pro-enemy materials cannot be deemed to have sold the instant 169 notices on the ground that the Defendant maintained the status of selling the said Twitter account by ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Twitter account. Furthermore, on the grounds indicated in its reasoning, the lower court determined that it was difficult to view that the Defendant sold the said account as a criminal with an intent to assist the Defendant’s act of distributing pro-enemy materials.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “distribution” of pro-enemy materials or assistance.

(2) The part on the "bearing" of pro-enemy contents

In full view of the circumstances as indicated in its reasoning, the lower court determined that it is difficult to view that the Defendant managed the instant 169 notices posted on the said account solely on the ground that the ○○○○○○○○○○○○ Account was an exclusive inter-Korean account operated and managed by North Korea, and that it was not recognized that the Defendant possessed the said notices by means of printing out or storing them.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “bearing”

B. Judgment on the second ground for appeal

Examining the reasoning of the lower judgment in light of the legal principles and records as seen in Section 1-A, the lower court affirmed the first instance judgment that acquitted all of the facts charged in the instant case on the violation of the National Security Act relating to Nos. 52, 71, 116, 248, among the facts charged, and was justifiable to have acquitted all of the facts charged in the instant case on August 10, 2012 and on August 24, 2012. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to pro-enemy pro-enemy materials under Article 7(5) of the National Security Act, contrary to what is alleged in the grounds of appeal.

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 Cho Jae-chul (Presiding Justice)