2018Gohap192 A. Violation of the National Intelligence Service Act

B. Violation of the Public Official Election Act

(c) Preparation of false official documents;

(d) Exercising false official documents;

(e) Forgery of private documents;

(f) Exercising a falsified investigation document;

(g) Concealment of evidence;

1.(a) A

2.(c)(d) B

3.(a)(f) C

4.(a)D

5.(a) E

6. (a) F

7.(a) G.

8.g. H

The Kim Sung-hun (prosecution), Kim Tae-hun, decoration, decoration, gambling, euthancia, sautism, sautism, and fixed Excursion ship (public trial)

Attorney Jeong-hee (for the defendant A)

Law Firm the above (for the defendant B)

[Defendant-Appellee] The Head of Si/Gun/Gu

Attorney Park Jong-chul (Law Firm C, E, and G)

Attorney Lee Dong-gu (Defendant D)

Law Firm Man (for defendant F)

Attorney Cho Jong-soo

Attorney Park Jong-soo (Defendant H)

August 17, 2018

Defendant A and B shall be punished by imprisonment with prison labor for one year and suspension of qualifications for one year, by imprisonment for ten months and suspension of qualifications for each of the defendants C, D, E, and G, by imprisonment with prison labor for one year, by imprisonment with prison labor for eight months and by suspension of qualifications for one year.

However, with respect to the defendants, C, D, E, G, and F, the execution of each of the above imprisonment for two years from the date this judgment becomes final and conclusive.

Defendant H is innocent.

The summary of the acquittal part in this judgment shall be publicly notified.

Criminal facts

【Status of Defendant and Related Persons】

Defendant A, from around December 14, 2010 to June 2012, as the team leader of the National Intelligence Service (hereinafter referred to as the "National Assembly")’s first team, Defendant B, from June 2009 to April 2013, worked as the team leader of the National Council (hereinafter referred to as the "Council") in connection with the above-mentioned cyber-related issues, including Defendant C, Defendant F, Defendant D, Defendant G, and Defendant E, who were the head of the team, continuously engaged in systematic cyber-related activities such as posting comments and comments on the issue at the National Assembly (hereinafter referred to as the "K Team"), and writing and comments, etc., which were repeatedly conducted by the NIS’s employees at the same time with those of the National Assembly members, and by continuously linking them with those of the National Assembly members, who were affiliated with those of the National Assembly members at the same time as those of the National Assembly members, during which the National Assembly members were affiliated with those of the National Assembly members, and actively supported by the National Assembly members during their respective period of service.

Pursuant to U, V, and W’s above order of political intervention, election intervention, and use of K Team, the staff of the J Team served with the direction system leading from February 14, 2009 to December 2, 2012 such as U, V, W, Y, and the team leader, etc., and instruct external assistants, such as the team leader, etc. of the “K Team,” to take measures such as maintaining security, such as guidelines received in the course of performing the duties of the NIS, the use of the budget, measures to cope with the investigation agency, etc., and to implement cyber activities in the same way as the cyber activities of the staff of the J Team. On the other hand, the staff of the J Team served comments, comments on comments and comments in accordance with the issue that were carried out by a large number of external assistants, or puts on the upper or upper floor using Z or upper floor, etc., and the Cyber activities are as follows.

On August 29, 2012, A. 4, an external assistant of the I.D. Dempiced or posted the 1st 6th 5th 2th Gab by accessing the 6th GaB’s website to the 1st 5th Gab, “Eth 1st 5th Gab,” or the 1st Gab 1st 6th Gab 1st 6th Gab 5th Gab 1st Gab 1st Gab 1st Gab Gab 1st Gab 1st 4th Gab Gab Gab, and 5th Gab Gab 1st Gab 1st Gab Gab 1st Gab Gab 1st Gab Gab Gab 1st Gab Gab Gab 1st Gab Gab 2st Gab 1st Gab 1st Ga.

【Criminal Facts】

1. Violation of the NISA (Defendant A, Defendant C, Defendant F, Defendant D, Defendant G, and Defendant A) and violation of the Public Official Election Act (Defendant A) provided for cyber political intervention and election intervention in connection with external assistants, such as the team leader of the “K Team”, even though they were activities unrelated to the duties of the NIS according to the direction of the NIS from around 12, 14, to June 2012 through the direction system as above, and provided for consideration to the outside assistants, such as the team leader of the “K Team,” even though they were activities irrelevant to the duties of the NIS, and ordered them to participate in the above cyber political intervention and election campaign.

From January 2010 to December 2012, Defendant B, etc. promised to offer compensation for activities executed with the NIS’s budget even though they were activities unrelated to the NIS’s duties according to the direction of U et al., which were sent out through the direction system as above, Defendant C, Defendant F, Defendant D, Defendant G, Defendant E, M, N, P, P, P, Q, R, etc., and ordered the team leader of “K Team” to participate in the above cyber political intervention and election opening activities.

피고인 C 등 'K팀'의 팀장들은 그 지시에 따라 다수의 팀원들과 함께 사무실, 자택 등지에서 AQ 등 인터넷 사이트에 게시글 작성 및 찬반클릭을 하거나 Z를 이용한 트윗· 리트윗 활동 등 인터넷, Z 등의 사이버 공간을 활용하여, 당시 대통령, 정부 및 여당 또는 여권 정치인들을 지지·찬양하거나 야당 또는 야권 정치인들을 반대·비방하는 내용으로 피고인 C은 범죄일람표(1) 기재와 같이 AQ 정치관여 글 680건[단, 별지2 '일부 철회 부분' 제1항 기재와 같이 범죄일람표(1) 중 70건은 제외]을, 피고인 F(AR 포함)는 범죄일람표(2) 기재와 같이 AQ 정치관여 글 127건을,1) 피고인 D은 범죄일람표(3) 기재와 같이 Z 정치관여 글 29건을, 피고인 G는 범죄일람표(4) 기재와 같이 인터넷 포털 사이트 정치관여 글 6건을, 피고인 E는 범죄일람표(5) 기재와 같이[단, 별지 2 '일부 철회 부분' 제2항 기재와 같이 범죄일람표(5) 중 16건은 제외] AQ 정치관여글 349건을, L은 범죄일람표(6) 기재와 같이 AQ 정치관여 글 244건을, M은 범죄일람표(7) 기재와 같이 AQ 정치관여 글 225건을, N는 범죄일람표(8) 기재와 같이 인터넷 포털 사이트 정치관여 글 11건을, 이는 범죄일람표(9) 기재와 같이[단, 별지2 '일부 철회 부분' 제3항 기재와 같이 범죄일람표(9) 중 18건은 제외] AQ 정치관여 글 130건 및 범죄일람표 (10) 기재와 같이[단, 별지2 '일부 철회 부분' 제4항 기재와 같이 범죄일람표(10) 중 12건은 제외] AQ 정치관여 글에 대한 찬성 내지 반대 클릭 38건을, P은 범죄일람표(11(12) 기재와 같이[단, 별지2 '일부 철회 부분' 제5항 기재와 같이 별지 범죄일람표(12) 중 227건은 제외] 2 정치관여 글 2,452건 및 범죄일람표(13) 기재와 같이 [단, 별지2 '일부 철회 부분' 제6항 기재와 같이 범죄일람표(13) 중 403건은 제외] AQ 정치관여 글 1,227건을, Q 등은 범죄일람표(14(15) 기재와 같이 [단, 별지2 '일부 철회부분' 제7항 기재와 같이 범죄일람표(15) 중 289건은 제외] 2 정치관여 글 2,167건 및 범죄일람표 (16)(17) 기재와 같이[단, 별지2 '일부 철회 부분' 제8, 9항 기재와 같이 범죄일람표(16) 중 404건, 범죄일람표(17) 중 144건은 각 제외] AQ 정치관여 글 3,067 건을, R은 범죄일람표(18)(19) 기재와 같이 2 정치관여 글 35건을 각각 올리고, AP 선거 등 각종 선거와 관련하여 당시 여당 및 여권 후보자를 지지하거나 야당 및 야권 후보자를 반대하는 내용으로 P은 범죄일람표 (12) 기재와 같이[단, 별지2 '일부 철회 부분 제5항 기재와 같이 범죄일람표(12) 중 227 건은 제외] 2 선거운동 글 1,459건을, Q 등은 범죄일람표 (15) 기재와 같은[단, 별지2 '일부 철회 부분' 제7항 기재와 같이 범죄일람표(15) 중 289건은 제외] Z 선거운동 글 1,922건 및 범죄일람표 (17) 기재와 같은 [단, 별지2 '일부 철회 부분' 제9항 기재와 같이 범죄일람표(17) 중 144건은 제외] AQ 선거운동 글 521건을, R은 범죄일람표 (19) 기재와 같은 Z 선거운동 글 31건을 각각 올리는 등 여론조작 활동을 수행하였다(다만, 피고인 A에 대하여는 위 피고인이 AT팀에서 근무하기 시작한 2010. 12, 14.경 이후의 활동에 한하고, 피고인 B에 대하여는 위 피고인이 사이버 정치관여 활동을 지시한 피고인 C, 피고인 F, 피고인 G의 정치관여 활동에 한한다. 아래 대가 지급 부분도 같다. 피고인 B 등 J팀 직원들은 피고인 C 등 'K팀'의 팀장들로부터 그 활동 실적을 취합하여 국정원 내부 보고를 한 다음, 피고인 C 등에게 예산 목적 외로 집행되는 국정원 예산 52억 75만 원(피고인 C에게 2010. 1.경부터 2012. 12.경까지 2억 8,890만 원, 피고인 F에게 2010. 1.경부터 2011. 7.경까지 6,660만 원, AR에게 2010. 1.경부터 2011. 7.경까지 8,220만 원, 피고인 D에게 2010. 1.경부터 2012. 12.경까지 3억 2,600만 원, 피고인 G에게 2010. 1.경부터 2012, 12.경까지 4억 8,250만 원, 피고인 E 및 AU에게 2010. 1.경부터 2012. 12.경까지 4억 3,700만 원, L에게 2010. 5.경부터 2012. 12.경까지 4억 4,750만 원, M에게 2010. 1.경부터 2012. 12.경까지 1억8,000만 원, N에게 2010. 1.경부터 2012. 12.경까지 3억 8,600만 원, 이에게 2010. 1.경부터 2012. 12.경까지 9억 7,300만 원, P에게 2010. 6.경부터 2012. 12.경까지 7억 400만 원, AV에게 2010. 1.경부터 2011. 10.경까지 1억 9,100만 원, Q에게 2010. 1.경부터 2012. 5.경까지 1억 2,600만 원, R에게 2010. 6.경부터 2012. 12.경까지 5억 3,535만 원, AW에게 2011. 2.경부터 2012. 12.경까지 3억 3,420만 원, AX 및 AY에게 2억 7,050만 원)을 위 정치관여 활동 및 선거운동의 대가로 지급하였다.

In addition, the employees of the J Team, such as Defendant A, etc., who were ordered by the team leader of the J Team, such as Defendant B, upon the above command system, carried out public opinion activities by raising 339 items by using Internet portal clocks (excluding 1 of the Criminal Day (20) as shown in paragraph (9) of the "part partial withdrawal of election campaign") in which the President, the Government, and political parties, or opposition or slanders at the time, or opposition or slanders political parties (excluding 34,68, 318, 338, 339, 340). As a result, Defendant A, Defendant B, in collusion with or against the specific political party or staff members participating in election campaign, by taking advantage of the position of the political party or staff members of the said Defendant at the same time, and by taking advantage of the position of the political party or staff members of the said Party, Defendant B and the political party or staff members of the said Party who are engaged in election campaign or election campaign.

Defendant C, Defendant F, Defendant D, Defendant G, and Defendant E engaged in political activities in sequence with the team members of the J Team Team Team Team leader, Defendant B, etc., and the K Team in U and its direction system, by taking advantage of the position of the NIS staff members, and by spreading opinions or facts that support, praise, oppose, or slander a specific political party or politician (limited to the part of their political activities).

2. Preparation of false official documents and the display of false official documents (Defendant B);

From 2010 to U, the Defendant prepared a false letter of the team leader's team leader's team leader's team leader's team leader's team leader's direction for the proliferation of online strike according to the direction system with U from 2010 to report the results as if the K team expanded.

(1) On August 201, the Defendant proposed the operation of the Category B Team at the office of the 2G Team in Seocho-gu, Seoul. The Defendant refused to engage in the activities of the team leader at the 2G Team leader at a high school, but did not work as the team leader at the 2G Team leader at the 2G Team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s "BC team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team leader’s team’s team leader’s 2.

3. Forgery of private documents and the uttering of private documents (Defendant C);

The defendant is the team leader of the "K Team for response to cyber pending issues," which has developed cyber activities in connection with the first group of the NIS, and is a person in charge of cyber activities, such as posting comments and writing comments, according to the arguments published at the NIS level. In fact, the defendant was only a member of the "BJ" that was organized by the defendant, and the defendant was not engaged in cyber activities on the ground of the name of BI as well as himself/herself. However, although the defendant was carrying out cyber activities on the ground of the name of BI, the defendant received KRW 10,50,000 from the NIS and received KRW 10,050,000,000 from the NIS, he/she voluntarily prepared a receipt from the BI to

A. On September 30, 201, at a restaurant where the name in Gangnam-gu Seoul is unknown, the Defendant: (a) received KRW 10.5 million of the activity expenses allocated to BI; (b) stated “BI” in the recipient column of the receipt form; (c) forged a receipt in the name of BI, which is a private document concerning the certificate of fact, for the purpose of exercising the name “BK” in the resident registration number column; (d) issued a forged receipt to B, who is aware of the forgery, and exercised it.

B. On November 24, 2011, at a restaurant where the name in Gangnam-gu Seoul is unknown, the Defendant received KRW 10,500,000,000,000 allocated to BI, stated that BI is “BI” in the recipient column of the receipt form, and forged a receipt in the name of BI, which is a private document concerning the certificate of fact, for the purpose of exercising it by stating “BK” in the resident registration number column, and subsequently, issued a false receipt to B, who is aware of the forgery. The Defendant around April 27, 2012, issued the above forged receipt to B, and exercised it. The Defendant received KRW 10,50,000,00 to BI, stating that “BI” is “BI” in the receipt column of the receipt form, and issued BI a false receipt in the name of BI, which is a private document concerning the certificate of fact, to exercise it.

D. On May 22, 2012, at a restaurant where the name in Gangnam-gu Seoul is unknown, the Defendant: (a) received KRW 10.5 million of the activity expenses allocated to BI; (b) stated “BI” in the recipient column of the receipt form; (c) forged a receipt in the name of BI, which is a private document concerning the certificate of fact, for the purpose of exercising the name “BK” in the resident registration number column; (d) issued a forged receipt to B, who is aware of the forgery, and exercised it.

E. On June 22, 2012, at a restaurant where the name in Gangnam-gu Seoul is unknown, the Defendant: (a) received KRW 10.5 million of the activity expenses allocated to BI; (b) stated “BI” in the recipient column of the receipt form; (c) forged a receipt in the name of BI, which is a private document concerning the certificate of fact, for the purpose of exercising the name “BK” in the resident registration number column; (d) issued a forged receipt to B, who is aware of the forgery, and exercised it.

Summary of Evidence

1. Each legal statement (or partial legal statement) of Defendant A, B, C, D, E, F, and G;

1. Each legal statement (or some legal statement) of the witness D (as to the defendant A, B, C, E, F, G), BF (as to the defendant B), and AZ (as to the defendant B), respectively;

1. Part of the witness BF’s statement in the second trial record (as to Defendants A, C, D, E, F, and G), 1. Defendant A (as to the evidence list Nos. 951, 1103, hereinafter referred to as “Evidence List”), Defendant B (as to the order No. 763, 918, 1094, 1100), Defendant C (as to the order No. 229, 1027), Defendant D (as to the order No. 286,59, 687, 106, 1014, 1015, 1037), Defendant E (as to the order No. 522,1026), Defendant F (as to the order No. 296, 1041), Defendant G (as to the order No. 209, 748, 2828, or 285).

1. Each prosecutor's statement concerning AR (No. 300), BL (No. 435), BM (No. 759), BN (No. 1065), and AS (No. 1093);

1. (Internal Documents) Each pending issue issue is: the current status of K Team operation (No. 2, 3), K Team operation status (No. 4), one copy (No. 23), one copy (No. 23), one copy (No. 13, 2010), one copy of the receipt related to the operation of K Team operation (No. 32, Sept. 13, 2010), and one copy (No. 16, Feb. 16, 2009), one copy of the first team’s statement processing method (No. 42), one copy of the audit data (No. 63), one copy of the receipt related to the operation of the K Team, and one copy of the investigation data (No. 75, Dec. 16, 2009, No. 18 (No. 42), one copy of the record of the first team utilization method (No. 63), and one copy of the audit data (no. 75, 275) and one attached to the investigation data (Attachment).75).

Each and accompanying documents (No. 859 to 870)

1. (Other) Investigation reports (Attachment of the Decision in the case of violation of the Public Official Election Act, etc.), each accompanying document (number 50 to 54), investigation reports (number 574), investigation reports (report on attachment of notices related to the K team leader C), accompanying documents (number 982 to 984), investigation reports (report on attachment of notices related to the K team leader G), attached documents (report on attachment of notices related to the K team leader G), and attached documents (number 91 to 993), investigation reports (report on attachment of notices related to the K team leader E), accompanying documents (number 91 to 93), and accompanying documents (number 9 through 1001), investigation reports (number 9 to 1001), investigation reports (number 102 to 104) and attached documents (number 104 to e-mail) related to the K team leader C at the time of the 20 election;

1. Article applicable to criminal facts;

A. Defendant A: Articles 18(1), 9(2)2, and 4 of the former National Intelligence Service Act (Amended by Act No. 12266, Jan. 14, 2014; hereinafter the same) and Article 30 of the Criminal Act (including the participation in political activities), Articles 255(3)2 and 85(1) of the former Public Official Election Act (Amended by Act No. 12393, Feb. 13, 2014; hereinafter the same shall apply)

B. Defendant B: Articles 18(1) and 9(2)2 of the former National Intelligence Service Act, Article 30 of the Criminal Act, Article 227 of the Criminal Act (including the preparation of a false official document), Articles 229 and 227 of the Criminal Act. Defendant C: Articles 18(1) and 9(2)2 of the former National Intelligence Service Act, Articles 33 and 30 of the Criminal Act, Article 231 of the Criminal Act, Articles 234 and 231 of the Criminal Act (including the exercise of a false official document)

(d) Defendant D, E, F, and G: Articles 18(1) and 9(2)2 of the former National Intelligence Service Act, and Articles 33 and 30 of the Criminal Act (including the point of involvement in political activities, including the point of involvement in political activities);

1. Commercial competition;

Defendant A: Articles 40 and 50 of the Criminal Act (Articles 40 and 50 of the National Intelligence Service Act and the Public Official Election Act, and punishment for a violation of the National Intelligence Service Act with heavier punishment)

1. Selection of punishment;

A. Defendant B: Determination of imprisonment with prison labor for each crime of preparing false official documents and uttering of false official documents

B. Defendant C: Determination of each imprisonment with prison labor on each of the crimes of forging each private document and uttering of each falsified document

1. Aggravation for concurrent crimes;

(a) Defendant B: The former part of Article 37, Articles 38(1)2 and 38(1)3, and Article 50 of the Criminal Act (Concurrent Imposition of imprisonment with prison labor with prison labor and suspension of qualifications prescribed for a crime of uttering of false official documents resulting from the exercise of false professional records concerning BF with the largest punishment and crime)

(b) Defendant C: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (Concurrent punishment of imprisonment with prison labor and suspension of qualifications prescribed for the same crime as imprisonment with prison labor with prison labor, which is the heavier penalty prescribed for a violation of the National Intelligence Service Act)

1. Suspension of execution;

Defendant C, D, E, F, and G: each Criminal Code Article 62(1)(The following favorable circumstances are considered among the reasons for sentencing)

Judgment on the defendants' and defense counsel's arguments

1. Judgment on Defendant A’s assertion

A. Summary of the assertion

Since July 1, 2012, Defendant A did not work for the first time after July 1, 2012, Defendant A is not liable for any violation of the National Intelligence Service Act and any violation of the Public Official Election Act after July 1, 2012 among the facts charged.

B. Relevant legal principles

1) It is necessary to resolve functional control over a criminal act conducted by the conspiracy. As such, if the conspiracy participated in the conspiracy, and did not remove influence on the implementation of another conspiracy, such as actively endeavoring to restrain the crime (see, e.g., Supreme Court Decisions 2008Do1274, Apr. 10, 2008; 2010Do6924, Sept. 9, 2010). 2) In the event that the Defendant went away from the conspiracy relationship, but the rest of the crime was committed by another accomplice, not by the conspiracy, even if the Defendant did not participate in the conspiracy, it should be deemed that there was a possibility that he/she would have been engaged in such an act beyond the scope of 20 criminal intent or by taking measures to prevent any possible functional control over the crime, as well as by any other accomplice (see, e.g., Supreme Court Decision 200Do927, Jan. 13, 2011; 2010Do927).

Examining the following facts and circumstances found by the evidence duly admitted and investigated by this court in light of the aforementioned legal principles, Defendant A conspired with members of the J Team and K Team in sequential order with the above accomplices, and thus, even if the above Defendant was not on duty at 1st century after July 1, 2012, it is difficult to deem that the above Defendant did not have any influence on the accomplices and left from the public competition relationship. Furthermore, the above Defendant was able to sufficiently anticipate that the cyber activities of this case may constitute an election intervention related to AP election that was imminent at the time of the cyber activities, and thus, Defendant A is responsible for the crime since July 1, 2012. The Defendant’s assertion regarding this is not accepted. ① The Defendant A directed and supervised the NIS’s activities for three years from the end of 2009 to June 1, 2012 as the Head of the State Team (BP Team, the team leader for a long time period of time, and directed and supervised multiple members of the Cyber Team and its activities.

② Even after the above Defendant 1 left a single team, the J Team members and K Team team leader who the Defendant directed and supervised the Defendant A continued cyber activities such as the previous cyber activities, and there was no particular change in the content and method of the activities. Defendant A was aware that the instant cyber activities may be illegal at the time of the first team employment (No. 26, No. 48262 pages), but there was no effort to block the cyber activities of the team members and K Team teams by leaving the team (No. 26, No. 48262 pages).

③ U repeatedly stated that “pro-North Korea forces” or “pro-North Korea forces” or “pro-North Korea forces” are “pro-North Korea forces” or “pro-North Korea forces” at various meetings held each month after his appointment on February 2009 (No. 2: 1354-1649). The instant cyber activities were conducted in accordance with U’s consistent perception and direction. As such, cyber political participation activities carried out on a regular basis during the election period may result in the nature of election intervention in the election period.

④ In fact, as seen in the list of crimes attached to the crime committed by Defendant A, around October 201, a number of K Team teams, including Defendant C, D, and E, such as Defendant C, D, etc., support the candidate for the election and criticize the candidate for the right to leave in connection with the election of BO, and the fact that Defendant A was involved in the preparation of a report stating that he/she would criticize a specific camping party or participate in cyber activities corresponding to the BP election (No. 26, 48242, 48264 pages). Accordingly, as long as the instant cyber activities are not suspended, Defendant A could have sufficiently predicted that the election campaign can be conducted even in relation to the AP election scheduled.

2. Judgment on Defendant B’s assertion

A. Whether to recognize co-principals

1) Summary of the assertion

Defendant B was ordered to AT Team on June 2009. Since the activities of the NIS K team began around March 2009, the previous members, only senior executives of the NIS, such as U, V, and W, shall be deemed to be responsible for the activities of political intervention, election intervention, and cyber activities as a principal offender, and it cannot be said that there is a public contest relationship with Defendant B, who is a subordinate employee, as a principal offender.

2) Determination

A person who has participated in the crime in the course of an inclusive crime shall be co-principal with respect to the crime after the participation.

Liability as a joint principal (see, e.g., Supreme Court Decision 97Do163, Jun. 27, 1997).

Whether to recognize liability as a co-principal ought to be determined on the basis of whether the intent of co-processing and functional control can be recognized. Therefore, the mere fact that Defendant B was issued to the I Group after the instant cyber activities commenced does not deny liability as a co-principal.

According to the evidence duly adopted and investigated by this court, Defendant B is recognized as having led to cyber activities by the K Team, such as: (a) serving in the K Team for a long time from June 2009 to December 2012; (b) performing cyber activities under the direction of the team leader of U, V, W, and J Team in sequence; (c) managing a number of K teams, such as Defendant C, F, and G, in a manner that pays monthly activity expenses and receives reports on performance; and (d) participating in the formation of a new K Team. In light of this, Defendant B is fully recognized as having the intent to jointly process the cyber activities of the K Team he managed. The Defendant B’s assertion on this issue is not acceptable.

B. Whether the publication constitutes a political intervention of individual publication

1) Summary of the assertion

Part 20 of the Statement of Offenses (20) that does not contain any content supporting or opposing the position, policy, etc. of a particular political person or political party; 2 that concerns simple security issues related to North Korea;

③ Since a third party’s writing is written and written by a third party, including newspaper articles, private opinions, and photoblographs, and a third party’s writing is not considered political intervention, the act of posting such writing cannot be deemed unlawful.

2) Relevant legal principles

A) In cases where it is evident that the contents of cyber activities of the J Team employees are the intent of directly supporting or opposing the relevant political party or politician while ordering a specific political party or politician, such activities constitute political intervention in light of the relevant statutes, and constitute a violation of the National Intelligence Service Act in view of the content of the aforementioned relevant statutes. Moreover, such activities constitute political intervention prohibited by the National Intelligence Service Act (see, e.g., Supreme Court Decision 2017Do14322, Apr. 19, 2018) since the content of the cyber activities leads to support or opposition to a specific political party or politician (see, e.g., Supreme Court Decision 2017Do1432, Apr. 19, 2018).

B) In principle, individual acts constituting a single comprehensive crime must meet the elements of each crime. In a case where posting an article through Z etc. constitutes a crime of violation of the National Intelligence Service Act or a crime of violation of the Public Official Election Act, the determination of whether each article constitutes political intervention should be made by thoroughly examining the overall circumstances, such as the specific contents, context, etc. of each individual posted article (see Supreme Court Decision 2013Do1513, Dec. 23, 2015).

3) Determination

A) Criteria for determination

In light of the above legal principles, it is reasonable to determine whether individual notice of crime list (20) constitutes political interventions or not based on whether the notice is the content of support and opposition to a specific political party or politician.

In the case of security issues, it cannot be readily concluded that there have been conflict of opinions between political parties or political forces, and therefore, posting comments, etc. on security issues cannot be said to be an act of political intervention. However, if notice comments, etc. on security issues contain contents supporting or opposing the positions and policies of specific political parties or political parties related to the relevant case, it is reasonable to deem such activities as an act of political intervention.

In a case where Internet newspaper articles, knife, private theory, etc., which are original literarys, contain support for or opposition to a specific political party or politician, the meaning or intent of original literarys cannot be deemed as dilution unless it is stated separately in the premise that they oppose or oppose the original text. Therefore, it is reasonable to view that the act of moving Internet newspaper articles, knife, private theory, etc., which contain support for or opposition to a specific political party or politician, constitutes an act of political intervention or election intervention.

B) Specific determination

Examining the comments on the list of crimes (20) according to the above determination criteria, since all 339 items posted on the list of crimes (20) are ① directly related to the support and opposition of a specific political party or politician, or the 12 government policy, the 12 government policy, the praise or support for political performance, the political position of camping rights, and the opposition and slander against policies, and the contents leading to the support and opposition against a specific political party or politician, the preparation of such items constitutes a crime of violation of the National Intelligence Service Act. The argument by Defendant B is rejected. The determination of whether the crime of preparing false official documents and the crime of uttering of false official documents is established or not.

1) Summary of the assertion

In fact, AZ is the team leader of the BD Team, and BF is the team leader of the BG team. Therefore, the facts constituting the crime paragraph 2 (the current status of the K team operation, response to the issues at issue of the BG team) is not false. Even if a false statement was made, Defendant B did not know it.

2) Determination

Comprehensively taking account of the following facts and circumstances acknowledged by evidence duly adopted and investigated by this court, BF and AZ did not have been in charge of the team leader of the K team, and AZ did not have worked in the dispute resolution committee. Defendant B, despite being aware of such fact, prepared the "K team leader leader leader leader" with false records of AZ experience, and prepared each "K team leader leader pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-pro-con" report to the person who prepared the report. The Defendant B’s allegation in this part is rejected

A) AZ professional pen

(1) The AZ was unable to memory the fact that the K team leader was proposed by the Defendant B at the time of the initial statement, but it was found that the Defendant’s proposal was presented in the process of confrontation with the Defendant B, but thereafter, the investigation agency and the Defendant’s refusal was made at the time of this court (Article 12, 21692). On the other hand, the Defendant Company B did not clearly state whether the proposal was accepted by the K team leader at the time of the initial statement.

BD team is K team created by Defendant B according to the direction of expansion of the upper part of the K team. The composition is composed of two (2) parts, including the parts of Defendant B (including Defendant B), Defendant G, and their parts. Of 10 (26:4798, 48065) of the 10 team members of the BD team, two (2) members, including the part of the Z and their wife (26:4798, 48065), and the remaining parts of the Z are those who are not aware of the Z. In light of these composition, BD team is actually formed jointly by Defendant B and the Defendant G, and A is only one (1) of the team members of the other part of the Defendant B. As seen from the name of the team, the Z team is derived from the K team (BR team) of the Defendant G, and it is not easy for the team leader to report the performance of the Z as the team members of Defendant G, and it is not easy to obtain natural information.

③ Defendant B stated that “A” was carried out as the K team leader in the wife but the performance report was sufficiently known and was insufficient to be managed by Defendant G. Ultimately, the nominal team leader stated that Defendant G was “A but was actually managed by Defendant G.” (Article 12 right 21688). However, if the above statement was made, the total amount of KRW 10.5 million stated in the receipt would have to have been paid to A at least when the initial activity cost was paid. In fact, the said amount was not paid to A, even once.

④ From June 2011, at the investigative agency and this court, there was one signature at the request of the above defendant on the receipt stating the amount of KRW 10 million. At the time, the defendant B, who received KRW 6 million, had himself/herself and transferred the remaining amount of KRW 5 million to other persons. The signature of the receipt dated August 23, 201 is the same, and the signature of the receipt was not prepared, and the signature on the receipt was also different from his/her own signature, and the signature on the receipt was also stated consistently to the effect that the above defendant B did not receive the receipt directly from the above defendant at the request of the above defendant, and that the other defendant B did not receive the receipt at the time, and that the other defendant B did not receive the receipt at the time, and that the other defendant B did not receive the receipt at the request of the above defendant 2 at the time, and that the defendant B did not receive the receipt at the end of KRW 50,000,00 from the above defendant 2 at the time.

⑤ The AZ consistently stated that the company “BA”, which entered in the protocol, was not known at all (the legal statement of the AZ, No. 11, No. 1638, No. 2688, and No. 4807). In light of various circumstances, the above company appears not to be a company that actually exists. Defendant B asserted that the name of the above company was entered into the AZ, but Defendant B stated that it was not known that the name of the above company was not known. Defendant B stated in this court that “A” is intended to make the AZ because she would have tried to do so because she would have known that she was not actually established (the Defendant B’s legal statement). Accordingly, it is reasonable to deem that Defendant B was a false statement, since it was known that the name of the above company was not actually established.

B) BF propy-related

① At an investigative agency and this court consistently stated that “The Defendant B was unable to associate with the Defendant, and there was no fact that the said Defendant proposed the K team leader from the said Defendant.” According to the Defendant B and D’s statement, although the Defendant B and D appears to have performed meals with the said Defendants, the Defendant D stated that the term “the team leader” was not mentioned in the said place (the witness D’s legal statement, No. 25, No. 47653), and even according to the Defendant B’s statement, the Defendant B did not have proposed the K team leader to the BF.

② Defendant B, upon paying the activity expenses in the name of BF to Defendant D, stated that D entered the name, signature, and resident registration number in the receipt in the name of BF in its front (Defendant B’s legal statement, No. 25, No. 47651). In other words, Defendant B did not have any factual verification as to whether the activity was actually carried out as the head of BFI K team, and it appears that there was no way to confirm it.

③ From April 201 to December 2011, 201, BF received KRW 500-6 million in cash from Defendant D and transferred activity expenses to those instructed by the said Defendant (BF’s statutory statement, No. 15, 30348, 30353-3054). In full view of the foregoing, Defendant D stated that BF was in charge of half of the entire K Team members (or the witness D’s legal statement), it was impossible to view BF as a mere agent of only a part of the K Team’s role under Defendant D’s instruction, and merely it is difficult to evaluate that BF was in fact engaged in the activities of the K team leader.

④ In full view of these circumstances, Defendant B, as a person in charge of the BG team, is deemed to have prepared a written protocol without any effort to verify the fact that at least BF may not be the actual K team leader at the time of preparation of the relevant team as a person in charge of the BG team.

3. Whether the judgment on Defendant D’s assertion is based on the summary of the argument

Defendant D was not aware of the receipt in the name of BF and was involved in the preparation. Therefore, the amount entered in the above BF receipt should be excluded from the sum of the activity expenses stated as Defendant D received in the facts charged.

B. Determination

In light of the following facts and circumstances acknowledged by evidence duly adopted and investigated by this Court, it is determined that the amount entered in the BF name receipt was received by Defendant D. The Defendant D’s assertion on this issue is rejected.

① At around 2011, BF commenced cyber activities at the bottom of Defendant D around 201. From the second month following the commencement of activities, Defendant D received cash of KRW 500-6 million per month from Defendant D, and transferred a certain amount of money to the team members instructed by the above Defendant D after depositing into the account of the Plaintiff. Defendant D stated that “BF’s statement, address, account number, etc. was informed of the team members” (BF’s legal statement, No. 15, No. 30348). The details of BF’s account were confirmed that the average amount of KRW 4 million per month from April to December 2011 were deposited to specific persons (No. 15 to 30353-354 pages).

② From January 2010, Defendant D received KRW 5,00,000 per month as the activity expenses of the BS team, around March 201, Defendant D newly established AP Team (BG team) and expanded the scope of news activities with comments (No. 24, 46494 pages) and recognized that Defendant D additionally received KRW 10,50,000 per month (No. 24, 46494 pages). Meanwhile, Defendant D stated that half of the amount of KRW 5,00,000 for the BS team activity expenses was paid to Defendant G at all times (No. 24, 46494 pages). Accordingly, Defendant D’s payment of KRW 50-6,000 to Defendant DO BF as part of the BS team activity expenses of KRW 500,000,000,000 for BG team activity expenses of KRW 10,505,000.

③ The purport of Defendant D’s assertion is that there was no receipt of KRW 10,50,000 each month after August 201. The above Defendant did not provide any explanation as to the circumstances during which the activities of BG teams were suspended. Also, if the above assertion was made, the source of the activity expenses that BF received from Defendant D during the period from September 201 to December 2011 is not clearly explained.

(4) The BF consistently made a statement at the investigative agency and this court consistent with the fact that there is no receipt (BF’s legal statement, No. 15, No. 30350), and Defendant B also made a statement that Defendant D had prepared the FF’s receipt in the presence of Defendant D (No. 25, No. 47651).

⑤ In view of the fact that the BF’s resident registration number is accurately written in the name of BF. The BF stated that Defendant D had a personal history to send a resume (BF’s legal statement) and Defendant B stated that Defendant B’s date of birth and career were to be known to Defendant D (No. 25, 47667 pages) and Defendant B and BF did not have any contact or contact with each other except a meal place once in the presence of Defendant D with Defendant D, each of the above statements appears to be true. Defendant D appears to have naturally known the resident registration number of BF during the process of delivering the curriculum of BF to Defendant B.

4. Determination on Defendant G’s assertion

A. Whether the statute of limitations has expired

1) Summary of the assertion

Defendant G’s criminal act was terminated on May 10, 2010, and the prosecution of this case was instituted on February 26, 2018 after the seven years have elapsed since the prosecution of this case was instituted on February 26, 2018, the said Defendant shall be sentenced to a judgment of acquittal.

2) Relevant legal principles

The suspension of prescription of public prosecution due to an indictment against one of the co-offenders extends to the other co-offenders (Article 253(2) and (1) of the Criminal Procedure Act).

3) Determination

The expiration date of the statute of limitations on the charge of this case against Defendant G shall run from May 10, 2010, which is the date of the completion of the execution (the date of preparation of a notice of the last day) stated in the indictment.

However, as seen below, the instant facts charged was suspended due to the suspension of the statute of limitations due to the prosecution against U et al. on June 14, 2013, which was prior to the expiration of the statute of limitations, and thus, it cannot be deemed that the statute of limitations has expired. The Defendant G’s allegation in this part is rejected.

① Defendant G conspired with the executive officers and employees of the NIS, including U, V, and W, and carried out cyber activities, such as the instant facts charged. As such, Defendant G was in a co-principal relationship with U, V, and W.

② U,V, and W, an accomplice of Defendant G, were indicted on June 14, 2013 due to the violation of the National Intelligence Service Act due to cyber activities, such as the recorded facts in the facts constituting the crime. The judgment became final and conclusive on April 19, 2018, which was after the date of the instant indictment. The facts charged against Defendant G and the facts charged in the instant case involving violation of the National Intelligence Service Act against U, etc. are all cyber activities conducted under U’s direction, and the entire facts charged constitute a single comprehensive crime.

④ Therefore, the statute of limitations is suspended because the prosecution against U, etc. is subject to the court’s potential judgment even if the prosecution is not instituted within the extent identical to that of the facts charged, and even if the part in which the defendant G participated is not included individually in the facts charged of U, etc., the statute of limitations suspension extends to the defendantG, an accomplice.

(b) Whether activity expenses in the name of the AZ are received;

1) Summary of the assertion

Defendant G is not aware of the receipt in the name of the Z and there is no fact that Defendant G was involved in the preparation. As such, the amount entered in the receipt in the name of the Z should be excluded from the aggregate of the activity expenses that Defendant G received

2) Determination

In light of the following facts and circumstances acknowledged by evidence duly adopted and investigated by this Court, it is determined that Defendant G has received the amount entered in the AZ name receipt. This part of the DefendantG’s assertion is rejected.

① According to the receipt, etc. issued by the NIS in the name of the NIS in the name of the investigating agency, during the period from April 201 to December 2011, 201, the AZ is indicated to receive KRW 10,500,000 per month from Defendant B of the NIS’s staff as the head of the BDR team derived from Defendant G’s BR team, and during the period from January 201 to December 2012, the BG team leader derived from Defendant D’s BS team and received KRW 10,50,000 per month from Defendant D’s staff BM (as the head of the BG team within the period from January 201 to December 2012).

② AD team consisting of around April 201, 201 consisting of Defendant B’s land (including AZ), Defendant G, and their land. As to this, the three statements do not conflict (26: 48065), and are in accord with the e-mail content of AZ (No. 26: 4798) (No. 26). The composition of the team is different from the K team that Defendant G had been operated prior to this (No. 12: 20446). In other words, BD team appears to be a new K team separate from the existing BR team.

③ Defendant B stated that, during the period between April 201 and December 2011, except for the extent of 1 to 2, 2011, the receipt in the name of Defendant B was requisitioned through Defendant G (No. 26: 48057). Around June 23, 2011, Defendant B issued a receipt stating KRW 10.5 million to Defendant B once and received cash amounting to KRW 6 million, and Defendant B made a statement that the receipt was not prepared (No. 26: 48068) and that there was no other fact that Defendant B made the account transfer (no. 26: 48068). On the other hand, Defendant G did not make any statement as to whether the receipt was prepared in the name of Defendant B and what method it was received.

④ From January 2012 to December 2012, 2012, BM, in charge of BG teams, was the same as that of Defendant D, G, and Z as a team at the time of “A”. Defendant G received funds from Defendant B, a full-time officer, in lieu of the activity expenses of Defendant D and AZ, and subsequently transferred receipts later. Therefore, Defendant G, in the same way, stated that “AZ’s activity expenses were paid to Defendant G and collected receipts in the name of AZ” (No. 12 right 21502-1 to 21503 pages).

⑤ At the time of the commencement of the Defendant G’s activities as a team member, the Z stated that the said Defendant had a name and a signature affixed to the copy of the resident registration certificate (No. 3: 4811). Defendant G appears to have known the resident registration number and signature of the Z.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for not more than five years and suspension of qualifications for not more than five years;

(b) Defendant B: Imprisonment with labor for not more than ten years and six months and suspension of qualifications for not more than five years. Defendant C: Imprisonment with labor for not more than seven years and six months and suspension of qualifications for not more than five years;

(d) Defendant D, E, F, and G: Imprisonment with prison labor for not more than five years and suspension of qualifications for not more than five years;

2. Scope of recommendations according to the sentencing criteria;

A. Although the sentencing guidelines are not set for Defendant A’s violation of the National Intelligence Service Act, the sentencing guidelines are not applied since the violation of the Public Official Election Act is in a mutually competitive relationship with the violation of the National Intelligence Service Act.

B. Defendant B

1) The sentencing criteria are not applied since the sentencing criteria are not set for a violation of the National Intelligence Service Act.

(ii) Crimes of preparing false official documents and of uttering of false official documents;

[Determination of Type 1] Preparation and Alteration of False Official Document (negative)

[Special Sentencing] None (the person who prepares a false official document uses the false official document, it shall not be treated as a majority crime, but shall be treated as a general person only in case of a general person)

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for not less than four months, but not more than ten months;

3) The sentencing criteria based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than four months (limited to the lower limit of the scope of sentencing in accordance with the sentencing criteria for crimes to which the sentencing criteria are applied, since a crime for which the sentencing

C. Defendant C

1) The sentencing criteria are not applied since the sentencing criteria are not set for a violation of the National Intelligence Service Act.

2) Crimes of forging private documents and uttering of private documents

[Determination of Type] Forgery, Alteration, etc. of Private Document

[Special Convicts] None [the person who has forged a private document uses the forged document; c. the crime of holding the document shall not be treated as a crime and shall be treated as a general sc.

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with labor for not less than six months, but not more than two years;

3) The sentencing criteria based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than six months (the lower limit of the scope of sentencing in accordance with the sentencing criteria for crimes to which the sentencing criteria are applied, because of a crime to which the sentencing criteria

D. The sentencing guidelines do not apply to Defendant D, E, F, and G violation of the National Intelligence Service Act on the grounds that the sentencing guidelines are not set.

3. Determination of sentence;

A. Defendant A and B: A 1 year of suspended sentence and Article 7 of the Constitution of one year of suspension of qualifications provide that a public official is a service provider for all citizens, who are not a specific political party or political force, and guarantees the political neutrality of public officials as a constitutional value. Accordingly, the National Public Officials Act and other Acts and subordinate statutes provide that public officials shall be subject to political neutrality. In particular, the NIS is not only a presidential direct information agency under the direction and supervision of the President, a huge budget and extensive organization, but also a collection of various domestic and overseas security information, and its organization, budget, work, etc. are not disclosed even though it exercises the right to receive certain crimes, and thus, there are many cases where the organization, budget, and work are not disclosed, which cause serious harm to democracy. Accordingly, the NIS Act and the Criminal Procedure Act prohibit the public official from participating in political activities, but also separate regulations on criminal punishment. Accordingly, it is necessary to prevent the public official from being subject to political neutrality of his/her duty to maintain the freedom and status of election and to use his/her political neutrality.

However, Defendant A and B conducted an election campaign prohibited under the Public Official Election Act by taking advantage of their status as a public official in collusion with the president and executive officers of the NIS including the president of the NIS, the employees of the IS and the civilian K Team, and by carrying out cyber activities that support and praises the president, female members, and political parties belonging thereto, and oppose and slanders the political parties and political parties belonging thereto for several years, and by taking advantage of the position of the NIS staff members, and by taking advantage of the position of the political officers prohibited under the Act on the National Intelligence Service, Defendant A and B carried out an election campaign for the purpose of avoiding the candidates belonging to the opposition party that supported the candidates of the opposition party in relation to AP (hereinafter referred to as the “instant crime”), and such crimes committed by the Defendants A and B are very serious in violation of the Constitution and statutes.

The J Team employees, including Defendant B, under the direction of Defendant A, conducted the instant crime by means of hiding their status as a general person or under the pretext of the general K Team leader and K Team members, and directed them behind the instant crime. Such method of crime is highly likely to distort public opinion. In that it is highly harmful to the formation of public opinion in democracy and our society.

In a final trial on U, etc., the NIS’s organizational cyber activities were revealed to the public, including the NISs, who have trusted in political neutrality and election campaign. However, during the instant trial process, the impact of the NISs was deepened by additional confirmation of the fact that a large number of general public were mobilized as the K Team leader and carried out cyber activities widely. Of the budget of the NISs to be used to ensure the national security and the national security by committing the instant crime, the number of billion won was used to distort the public opinion of the people and to attack democracy systems.

The performance of the duties within the NIS is for the efficient performance of the duties of the public official performing the national security service, and the illegal instruction by the superior of the NIS is not sufficient in front of the benefit of the people. There may be some circumstances that Defendant A and B could not actually refuse the direct order related to the instant crime, but it cannot be deemed impossible to expect the refusal of the illegal instruction, and if such circumstances are excessively considered, it would result in the recurrence of systematic illegal acts inside the NIS, such as the instant case.

Considering the seriousness and seriousness of the instant crime, the general preventive function of punishment should not be considered in order to prevent the State agency from repeating the imprudent history of involvement in organized illegal activities.

Defendant B, while expanding the K Team for cyber activities, prepared and exercised a false K Team leader's procilization and false official document. Such crime is not less complicated in that it is used as the basis for the citizen's unlawful spending of taxes.

However, Defendant A and B were involved in the instant crime in the course of performing their duties according to the direction of the upper part, and there seems to be no fact that the said Defendants obtained personal benefits, such as promotion to the instant crime. Defendant A and B are recognized as a substitute for their mistake and are against themselves.

These circumstances are to be considered as part of the favorable circumstances to the above Defendants.

Other factors of sentencing, such as the age, character and conduct, environment, motive, means and consequence of the crime, etc., shall be determined as ordered by comprehensively taking into account all the factors of sentencing, including the circumstances after the crime.

(b) Defendant C, D, E, F, G

1) Defendant C, D, E, and G: Imprisonment with prison labor for each of ten months, two years of suspension of execution and suspension of qualifications for one year;

2) Defendant F: C, D, E, F, and G are linked with the NIS during the 8-month period of suspension of the execution and suspension of qualifications one year, and Defendant C, D, E, G are organized as the K Team leader in connection with the NIS, and continuously posted online information and arguments from the NIS for several years, and as a result, received the activities of KRW 00 million from the NIS in a systematic and planned manner. The above Defendants could sufficiently be aware that their actions would not adversely affect the society. Meanwhile, Defendant C’s fabrication of private documents and its events were forged in the course of using the receipt in the name of the K Team leader for additional activities, and are not good in quality of crimes. Such circumstances are unfavorable to the above Defendants. They do not have the status of the NIS staff. The above Defendants were charged for committing a relatively short period of time than those of the Defendants’ activities.

Other factors of sentencing, such as the age, character and conduct, environment, motive, means and consequence of the crime, etc., shall be determined as ordered by comprehensively taking into account all the factors of sentencing, including the circumstances after the crime.

The acquittal portion

1. Part of Defendant B’s violation of the National Intelligence Service Act

A. The part concerning the Z activities of D

1) Summary of the facts charged

Defendant B, in collusion with U, D, etc., instructed D to participate in cyber political activities according to the direction of U, etc., which was sent through the command system, such as criminal facts, and accordingly, D posted 29 political interventions as shown in the attached Table (3) between September 7, 201 and October 10, 201.

2) Relevant legal principles

Joint principal offender under Article 30 of the Criminal Code is a joint principal offender under Article 30 of the Criminal Code with two or more joint principal offenders.

In order to establish a crime, it is necessary to perform a crime through functional control over one’s own act based on the intention of co-processing, which is a subjective element, and the intent of co-processing shall be integrated to commit a specific criminal act with the intent of co-processing, and shall be to shift one’s own intent by using another’s act. In full view of the position, role, control or power over the progress of the crime, etc. of a person who does not directly share part of the act constituting the elements of a crime among the conspiracy, a person who does not act with the intent of co-processing may be held liable as a so-called co-principal in cases where it is deemed that a functional control exists through an essential contribution to the crime, rather than a mere conspiracy, if it is deemed that there exists a functional control over the act through an essential contribution to the crime (see Supreme Court Decision 2016Do15470, Jan. 12, 2017

3) Determination

Examining the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court in light of the aforementioned legal principles, the Z activities of D appear to have been based on the proposal of the BP team members, not the AT team to which the Defendant B belongs, and there is no circumstance to deem that Defendant B participated in the activities of Defendant B-2. It is insufficient to recognize that the evidence submitted by the prosecutor alone had the intention of joint processing or functional control over the part of the Z activities of Defendant B. The co-principal responsibility for this part is not attributable to Defendant B.

① At around 2011, 3: (a) around 201 and 201, D received additional proposals to Z activities other than the NIS staff B and BU from around that time to September 201 (No. 23, 45419). (b) BT is directly superior to Defendant B as the chief of the AT Team, and BU is a member of the BP team. BU is the process of proposing Z activities to D, upon receipt of instructions from BP team leader BV to Z Team BV, “I want to hear a ZK Team flock because I would have been giving a flock with BT team,” and made a statement that “D was only flick with BT,” and that it appears that BU would not directly support the above affairs, not as part of the above affairs, but as part of the BP team. According to BU’s statement, BU appears to have been directly related to BUT’s affairs (No. 23, 4511).

Expenses for activities related to the Z were paid through the BP Team. BU and successor W stated that they paid D in 10,000 won per month or 5,000 won of activity expenses and collected receipts (No. 23, 4541, 45413).

B. AX cyber activity part

1) Summary of the facts charged

Defendant B conspired with J Team members BX according to the direction of U, etc., which was sent through the direction system as stated in the facts constituting a crime, and BX posted the 328 letter of notice [No. 34,68, 313-318, 338, 339, 340] prepared by Defendant B in Q, as shown in the attached list of crimes (20).

2) Determination

Examining the following facts and circumstances acknowledged by evidence duly adopted and examined by this court in light of the legal principles as to the establishment of co-principal, Defendant B and X respectively performed cyber activities of this case individually under the direction of the head of the strike to which they belong, and there is no reason to deem that Defendant B was or was actually involved in the cyber activities of Defendant B. It is insufficient to recognize that Defendant B had an intention to co-processing or functional control over the cyber activities of BX. It is insufficient to recognize that Defendant B had an intention to co-processing or functional control over the cyber activities of BX. The 328 copies of the 328 copies of the 328 copies of the 328 copies of the 328 copies of the 20th [Attachment 20] posted by Defendant B (the 34,68, 313-318, 338, 339, 340 letters other than the 340 copies of the 20th page [a].

① With respect to the instant cyber activities of the NIS members, there are several issues and arguments containing about 2-3 lines for each subject and each subject. These issues and arguments are drawn up by a person in charge of the ABP team every day, and reported to the head of the group, the head of the 1 group verbally or in writing, and each team leader spreads them to the chief of the J Team, and each of the team leader spreads to the chief of the PP team, and each of the chief of the PP team spreads to the members of the PP team.

(2) The strike members, upon receipt of the issues and arguments, conducted the cyber activities of this case for each individual in the area of their activities (e.g., portal operators, Z, etc.).

③ Defendant B and BX belong to the same team (AT team), but the strike belonging to the same team is different from each other, and there is only two different duties, and there is nothing in the relationship between Defendant B and B, ordering or receiving cyber activities from the same team.

C. Conclusion

Since the facts charged regarding the Z activities and the violation of the National Intelligence Service Act regarding the cyber activities in BX constitute a time when there is no proof of crime, the acquittal should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as Defendant B guilty of violating the National Intelligence Service Act, which is a single comprehensive crime, the judgment of innocence shall not be rendered separately

2. The part concerning the AR additional cyber activities among the violation of the National Intelligence Service Act by Defendant F

A. Summary of the facts charged

Defendant F added up KRW 15 (No. 13, 17-19, 29, 38-45, 48, 123 in the order of the NIS staff’s instructions for cyber political activities, and received from the NIS staff KRW 82,200,00 from January 201 to July 2012, 200 as a consideration for the payment of KRW 8,220,00,00 from the NIS staff, as indicated in the list of crimes (2).

As a result, Defendant F conspired with U and other NIS employees, K Team members, etc. in order to take advantage of the position of staff members of the NIS, and engaged in political activities such as gathering opinions or facts that support, praise, oppose, or slander a specific political party or politician.

B. Determination

1) In light of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, Defendant F appears to have failed to know that the AR created an additional ID as a proposal for its staff members and received activity expenses in the course of conducting cyber activities, and was unlikely to anticipate such fact. The evidence submitted by the prosecutor alone is insufficient to recognize that the cyber activity part, which AR created an additional ID, is also liable to Defendant F.

① From January 2010, Defendant F, the president, proposed that cyber activities be conducted in Q Q from the NIS’s staff at his office, and he did not know his computer and instructed the Secretary General to consult with AS (No. 6208 pages, No. 2570 pages, No. 47570). AR consulted with AS to have 20 and 10 of 10 of 10 and 20 of 10 of 10 of 10 of 10 of 10 of 20. Defendant F did not report the overall cyber activities of this case to AR and reported the details of the activities to the 5th of each month (AR’s statement, investigation records, No. 5210 of 2010). ② AR, around Jan. 1, 2010, submitted the 5th of 2010 list of family members and 5th of 2nd of the 2nd of the 5th of the 2nd of the 2nd of the 196th of the NA.5th of the 3th of the NA.

③ On January 201 to July 201, B, at the office of BY 3rd floor each month, Defendant F paid either KRW 3,300,000,000 to Defendant F, and collected receipts from Defendant F. Defendant F, each month, respectively, to his/her father and wife of AR, and KRW 3,50,000 to AR divided the amount of KRW 1,10,000 to KRW 3,50,000 to KRW 3,000 to KRW 5,00 (AR’s legal statement, KRW 24,650).

④ During the period from January 201 to July 201, 201, AS and B paid KRW 3.3 million to Defendant F, and subsequently, paid KRW 4.5 million to AR’s office located under the above building, and separately collected receipts from AR (as the AR’s legal statement, KRW 2.2 million, according to the receipt statement, KRW 4.573, and KRW 82,200,00,000). As to the reasons for the partial payment of activity expenses, AS stated that “Defendant F paid activity expenses to AR separately on the ground that the Defendant F was aware of the fact that the Defendant F would have failed to think that the activity expenses would have been incurred.”

⑤ If Defendant F knew that the amount of almost half of the 3.3 million won of the activity expenses that he received every month was distributed to AR and its father’s children (AR’s legal statement), Defendant F would not distribute a large amount of money to AR if he knew that Defendant F is receiving more activity expenses than AR separately.

2) Furthermore, regarding the scope of Defendant F’s responsibility, the following facts are examined: (a) 115 articles posted by the “EN” in the attached list of crimes (2) are written in the name of Defendant F, and thus, are included in the scope of Defendant F’s liability. However, in the case of 15 articles posted in the name of AR family members (attached Form 2, 15 articles posted in the list of crimes (attached Form 2, 15 articles posted in the list of crimes, 15 articles posted by the public prosecutor, 17-19, 29, 38-45, 48, 123) are not included in the scope of Defendant F’s liability. The evidence submitted by the public prosecutor that included the pertinent list of crimes (attached Form 2, 15 articles written in the list of crimes, 15 articles written in the list of crimes, 15 articles written in the list of crimes, 30 or more additional articles written in the name of Defendant FD’s family members, 30 or more of Defendant FD’s family members.

C. Conclusion

This part of the facts charged constitutes a case where there is no proof of crime, and thus, the acquittal should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as Defendant F’s conviction of violating the National Intelligence Service Act, the judgment of innocence is not rendered separately

3. Concealment of evidence by Defendant H;

A. Summary of the facts charged

Defendant H is the Secretary-General of X, an incorporated association X (hereinafter referred to as “X”), a State Council member’s meeting. Defendant H, around August 28, 2017, at the X office located in Seocho-gu CF building, QG chairperson, who was the head of the planning office, QX president, CH, who was the head of the headquarters, made a false statement from the Prosecutor’s Office on the foregoing documents, including the “X-,” the draft of the business operation budget in 2008, the draft of the business operation budget in 2009, the draft of the business operation budget in 2010, the draft of the business operation budget in 2011, and the draft of the business operation budget in 201. Defendant H, who was under investigation by the Prosecutor, did not have the above documents, concealed the vehicle into the foregoing vehicle’s residence in the Gyeonggi-si area CI and CJ, and made a false statement from the Prosecution on August 10, 2017.

1) Whether it is evidence concerning another person's criminal case

In the crime of concealing evidence, the term "Evidence" means all the data recognized by an investigative agency, a court, or a disciplinary authority to be related to confirming the existence of the State's penal authority or disciplinary authority in relation to another person's criminal or disciplinary cases, and it does not seem disadvantageous to another person (see, e.g., Supreme Court Decisions 2002Do3600, Jun. 28, 2007; 201Do5329, Nov. 28, 2013); and in light of the above legal principles, considering the following facts and circumstances recognized by the court as evidence duly adopted and investigated by the court, it is deemed that the "208-201-201 budget compilation proposal for the business operation from the X office" constitutes evidence concerning another person's criminal case.

① In the course of investigating Q’s cyber activities, the prosecution conducted search and seizure of X-X offices on August 23, 2017 in order to clarify whether there is a public bid between the NIS and X-X CG (hereinafter “CG”). The prosecution seizes various documents, such as meeting minutes of the board of directors, and seizes electronic information by using siren 10 used by employees, including Defendant H and K in the office of operation. However, the book “208-201 budget compilation plan for the operation of the business in 2008-201” was not seized (3° 444-4506 pages). The computer class was used as a space for encouraging CG members to engage in the instant cyber activities or educating the Z utilization law (11.171, 16171, 16198, 1620 pages).

③ Around April 2010, Around April 2010, X supported the purchase at government procurement prices by receiving an estimate of 1 parts and monitoring 46 parts of the PC in the name of the NIS (No. 26, 48030 pages).

2) Whether the defendant had the intent to conceal evidence

A) As a subjective element of the constituent element of a crime, “unborn intentional act” refers to a case where the possibility of occurrence of a crime is expressed as uncertain and it is acceptable. In order to have dolusent intentional act, there is a perception of the possibility of occurrence of a crime, as well as an intent in the internal deliberation to allow the risk of occurrence of a crime (see, e.g., Supreme Court Decisions 85Do660, Jun. 25, 1985; 86Do2338, Feb. 10, 1987; 2003Do7507, Feb. 27, 2004); and the issue of whether an offender has permitted the possibility of occurrence of a crime is specific circumstances, such as the form of an act performed outside the country and the situation of an act, etc., not dependent on the statement of the offender.

On the basis of the general public’s evaluation of the possibility of occurrence of the relevant crime, the psychological state should be ratified from the standpoint of the actor. In such a case, the prosecutor bears the burden of proving the existence of dolusive intention, which is a subjective element of the crime charged, which has been prosecuted. On the other hand, the conviction should be based on the evidence with probative value that leads to the conviction of a judge to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is a doubt about the defendant’s guilt, it is inevitable to determine the defendant’s interest as the defendant’s interest (see Supreme Court Decision 2004Do74, May 14, 2004). In light of the above legal principles, it is difficult to view that the evidence submitted by the prosecutor alone has the awareness that the defendant H had concealed the evidence of another person’s criminal case, and further, it is difficult to readily conclude that the possibility of occurrence of the consequence of the concealment of evidence has been within the deliberation that allowed the possibility of evidence.

① Around August 16, 2017, prior to the day of the search and seizure by the prosecution, Defendant H had been aware of the outlined facts that CG members, including Q, had committed the instant cyber activities at the NIS’s order. Therefore, if Defendant H had an intent to destroy evidence in the instant case, there was sufficient time to destroy evidence before the search and seizure on August 23, 2017. However, there is no reason to deem that Defendant H destroyed evidence before the search and seizure.

② The point at which Defendant H had “the budget compilation proposal for the operation of the business in the year 2008-201” from the X office was 5 days after the execution of the search and seizure on the above office on August 28, 2017. Defendant H participated in the execution of the above search and seizure warrant and was aware of the fact that electronic information was seized and multiple documents, including the minutes of the board of directors, were seized. Therefore, there is sufficient possibility that Defendant H did not seize the said warrant, but left the office, and there is sufficient possibility that there was no need for investigation. In fact, the same content as the budget proposal for the operation of the business in question was already secured in the process of digital information seizure on PC at the time of search and seizure (Evidence No. 5).

③ On August 28, 2017, Defendant H stated that “I will take advantage of the fact that QG received KRW 500,000 per month from X office support from X to CG,” and that “I will take advantage of the data that could not be verified while leaving the office to verify the grounds for payment and relevance to cyber activities” (No. 26: 48020 pages). According to the message sent on August 28, 2017 by X staff CL and Q Q from the above office, it is difficult to ascertain that there was no possibility of destruction of evidence from 2009 to 500,000 won per month from 2013, and that there was no possibility that QG would have been provided with data that could have been found from the above office’s overall compilation of the budget.” Thus, it is difficult to view that there was no relevance between Defendant H and the above office’s overall compilation of the budget, and there was no possibility that it was no evidence that it was available to verify the pertinent office’s contents of the budget.

⑤ As long as it is difficult to see that Defendant H had an intention to conceal evidence at the time of leaving the budget compilation proposal for the operation of the foregoing business in X office, it is also difficult to view that Defendant H’s false statement in the location of the vehicle at the time of the dwelling search and seizure on August 30, 2017 as an act of concealing evidence. Defendant H stated that “Although he knew that it was not a “material document” as to the reason for false statement, Defendant H made it false statement that he was in possession of the documents from X office on the vehicle, even though he knew that it was not a “material document”, it did not appear to be a defense that was difficult to obtain (No. 26No. 48019).

④ Although Defendant H was in contact with Q Q prior to August 28, 2017, it appears that it was an alternative purpose to grasp the course and status of the case, and it did not appear that Defendant H had an intention to actively destroy evidence or interfere with the investigation (No. 26, 48040 pages).

C. Conclusion

This part of the facts charged constitutes a case where there is no proof of crime, and thus, a defendant H is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment of innocence is publicly announced pursuant to Article 58(2)

The presiding judge, the highest judge;

Judges Gin-type money

Judges Shin Jae-ho

1) However, there are 15 cases in the Schedule of Crime (2) in the Schedule of Attached Table 3, which excluded the Defendant F from the scope of Defendant F’s liability, as seen in the reasons for the subsequent innocence.

Defendant F’s criminal facts constitute the crime of Defendant F, inasmuch as the NIS’s personnel AS and B’s activities were independently conducted without the involvement of Defendant F.

outside shall be outside.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.