Article 104-2 (2) of the Criminal Act

Article 104-2 (2) of the Criminal Code is not an aid or assistance, such as an indirect offender, but a complete completion of an act of crime components, and a crime of State conspiracy under Article 104-2 (2) of the Criminal Code shall be deemed to be a crime of danger, and the crime is already committed at the time of such act.

Article 104-2 of the Criminal Act

Defendant

Defendant and Prosecutor

Seoul Criminal Court of the first instance (85 High Court Decision 4603)

The judgment of the court below is reversed.

The defendant shall be punished by imprisonment for two years.

One hundred forty-five days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

Seized evidence Nos. 1 through 8 shall be confiscated from the accused.

1. Summary of grounds for appeal;

A. The gist of the prosecutor's grounds for appeal is that the court below sentenced the defendant to two years of imprisonment with prison labor while recognizing the defendant guilty of all the facts charged in this case. This is unfair in light of the circumstances such as that the defendant has been engaged in the work of causing social confusion by inciting students and the public without any certain occupation, and that there was against the state agency against the external reporters, and that there was no misunderstanding of the error, etc., the amount of the punishment is too unreasonable.

B. The gist of the grounds for appeal by the defendant is as follows: First, about the part concerning the national appearance of Paragraph 2 at the time of original adjudication

(1) On April 1, 1985, at around 18:00, the Defendant divided the Defendant’s house located in Gangseo-gu Seoul Metropolitan Government Young-gu, that there is a need to examine the President’s opposition to the President’s defense through his checks that the President’s opposition to the President’s defense was raised while the executive officers were found and exchanged with the members of the Young-gu Youth Association of Persons I, including Non-Party I (hereinafter “Private Relations”), and that the President’s opposition to the President’s defense was made. However, since the date was private, since the group was private, it was impossible to make a decision at that date, it was decided officially at the next regular meeting, and the Defendant decided to do so at the next regular meeting, but the Defendant was not aware of its contents because the Defendant did not attend the meeting, the lower court acknowledged the Defendant’s failure to notify the Defendant of the fact that the Defendant had an objection to the name of the non-party representative in his office on December 12, 199.

(2) Even if the responsibility for the presentation of the above name to the Defendant is crossed off, the content of the statement of this case under the title "the President's visit to the United States shall be withdrawn" shall not be deemed to have insultd and distorted the state agencies established by the Constitution, and therefore, it shall be deemed that the court below recognized the act of insulting and neglecting the distribution of the above name and spreading false facts about such act, thereby impairing the prestige of the Republic of Korea and impairing the security and interest of the Republic of Korea, thereby adversely affecting the conclusion of the judgment.

Second, with respect to the violation of the Assembly and Demonstration Act in paragraphs (1), (3), (4), and (5) at the time of the original adjudication (hereinafter referred to as the "Ex Officio Act").

(1) The amended part of the current Assembly and Demonstration Act in 1980 was amended by the National Assembly and Demonstration Act, which was not delegated by the people with the authority to enact or amend the Act. Among them, Article 3(1)4 of the same Act provides that "any assembly or demonstration which might cause a profound social anxiety" shall be defined as an assembly or demonstration, which is a specific and limited concept, and thus, there is room for a broad interpretation by stipulating a specific and limited concept of the law, thereby infringing on the fundamental contents of the freedom and rights of the people. Therefore, the court below, despite the violation of the Constitution, applied Article 14(1) and (2) and Article 3(1)4 of the Assembly and Demonstration Act as to the above charged facts against the defendant. Accordingly, the court below erred by applying Article 14(1) of the same Act and Article 3(1)4

(2) In the case of paragraphs (1), (3), and (4) of this case, although there was a fact that the Defendant planned and gathered each of the assemblies of this case, the Defendant was unable to hold an assembly due to the reform of the police's advance salary, and the Defendant did not instigate each of the demonstrations, such as the time of original adjudication, but the lower court erred by misapprehending the fact that the Defendant committed each of the above crimes, thereby affecting the conclusion of the judgment.

(3) At the time of the original adjudication, there was a meeting with Nonindicted Party 11, etc., such as the time of the original adjudication, but there was only seven students’ gathering and consultation with the U.S. Cultural Institute after the occupation of the U.S. Cultural Institute, and thus, it cannot be deemed that an assembly likely to cause considerable social anxiety was held. However, the lower court recognized that the Defendant held an assembly likely to cause considerable social anxiety, thereby having committed an offence of misapprehending the legal doctrine on the Act, thereby adversely affecting the conclusion of the judgment.

Third, the court below's sentencing is too unreasonable;

C. Summary of the grounds for appeal by the defense counsel

First, with respect to the part concerning the national mother of Paragraph 2 at the time of the original adjudication

(1) It was true that the defendant discussed on April 1, 1985 that he had the opposing names of the public-private partnership executives and the president's dissenting names through the press conference. However, it was not agreed that the press conference was against the public-private partnership only, and there was no knowledge that the press conference had contacted the public-private partnership to the public-private partnership reporters in advance, and even if the press conference was present, the court below did not err by admitting the facts, and found the defendant as the co-principal of the crime of the state-private partnership, and found the defendant as the co-principal of the crime of the state-private partnership.

(2) To constitute a crime of State conspiracy under Article 104-2 (2) of the Criminal Act, a national must insult or defame a foreigner or a foreign organization, etc. established by the Republic of Korea or a state organization established by the Constitution of the Republic of Korea, or spread a false fact, or a foreigner’s defamation against the Republic of Korea or its constitutional organization outside Korea using such a foreigner or foreign organization. The contents of the instant printed matter do not contain any insulting or slandering facts by specifying the constitutional organization even though they criticize the current regime, and even if the printed matter or interview was not disseminated abroad, the court below erred by misapprehending the legal principles as to the crime of State conspiracy, thereby recognizing that the defendant committed such crime.

Second, with respect to the violation of the Assembly and Demonstration Act of paragraphs (1), (3), (4), and (5) of the original adjudication

(1) In the case of the original adjudication, the Defendant was only planned in advance to hold each of the assemblies of this case, and there was no fact that the Defendant planned or instigated the demonstration in advance, and the Defendant resisted the police that interfered with peaceful assemblies by violence in Paragraph (4) at the time of the original adjudication, and did not instigate the demonstration, but the lower court erred by misapprehending the fact that the Defendant committed each of the above crimes, thereby adversely affecting the conclusion of the judgment.

(2) Considering that an assembly or demonstration that is likely to cause a significant social anxiety as provided in Article 3 (1) 4 of the Assembly and Demonstration Act is an essential fundamental right beyond the freedom of assembly and demonstration of citizens and the freedom of press and publication in order to form a political will of the people beyond the freedom of individual freedom, it shall be deemed that the assembly or demonstration constitutes only when the assembly or demonstration has committed a violation of the fundamental democratic order of the Republic of Korea, and even though the assembly or demonstration at issue in this case is obvious in the record that it did not reach it, the court below found the defendant guilty of all the above facts charged against the defendant, which affected the conclusion of the judgment of the court below or erred by misapprehending the legal principles as to the Assembly and Demonstration Act.

Third, the sentence of the court below against the defendant is too unreasonable.

2. Judgment on the grounds of appeal for mistake of facts and violation of law

(a) Part of the State model;

(1) We examine the assertion of mistake of facts concerning the co-principal.

In full view of the evidence duly admitted by the court below and the statement of Nonindicted Party 2 prepared by Nonindicted Party 2, 1, and 3 as well as the statement of Nonindicted Party 2 prepared by Nonindicted Party 2 in the court of law, the court below held that, even if the defendant's office was the defendant's opinion at around 18:0 on April 1, 1985, the defendant's name and the non-indicted Party 1, which was the defendant's office at the time of the defendant's office, the non-indicted Party 4, the Vice-Chairperson 5, the head of the operating committee, and the head of the secretariat et al., discussed the following issues: the defendant's name and the non-indicted Party 3's name and the non-indicted Party 4's name and the non-indicted Party 4's name and the non-indicted 6's name and the non-indicted Party 3's name and the non-indicted Party 4's name and the non-indicted Party 4's name and the non-indicted 3's name and the defendant's name and the non-party.

(2) We examine the misapprehension of the legal principle as to the crime of national conspiracy.

According to Article 104-2 (2) and (1) of the Criminal Act, if a national insults or defames a foreign country or a state agency established by the Constitution of the Republic of Korea or a foreign organization, etc., or spreads or spreads any false fact, or damages or threatens to harm the security, interest, or prestige of the Republic of Korea by other means, such punishment shall be imposed. This is not an indirect crime, but an indirect crime, but an element of a crime is complete, and an element of a crime is a crime, and the crime of the State conspiracy under the same Act is deemed a crime of danger, and the crime is already committed at the time of such act (see Supreme Court Decision 83Do515, Jun. 14, 1983). Thus, the defense counsel's assertion that a national uses a foreigner outside of the Republic of Korea or a foreign organization should be made, and the foreigner's use of the same should not infringe upon the security of the Republic of Korea or its constitutional organization, and as such, distribution of the name of this case (Evidence No. 4), etc.

B. Part of violation of the Assembly and Demonstration Act

(1) We examine the argument on the unconstitutionality of the Assembly and Demonstration Act.

After the current Assembly and Demonstration Act was enacted on December 31, 1962, the National Assembly and Demonstration Act was amended on December 18, 1980. However, according to Article 6 of the amended Constitution, the National Assembly and Demonstration Act remains until the day before the first assembly of the National Assembly under the current Constitution is held until the day before the first assembly of the National Assembly is held in accordance with the Constitution, and it is apparent that the Act enacted by the National Assembly and the National Assembly and the Act enacted by the National Assembly and enacted by the National Assembly and enacted by the National Assembly and the Act shall continue to be effective. Therefore, the defendant's assertion that the National Assembly and the National Assembly did not have been authorized to enact or amend the Act by the people is without merit. Meanwhile, the meaning of "any assembly or demonstration which is likely to cause considerable social uncertainty" as provided in Article 3 (1) 4 of the Assembly and Demonstration Act cannot be deemed to have provided a vague concept that can be specified through the interpretation of the law through the trial process, and therefore, it cannot be viewed that there is any infringement on the essential contents of the freedom and rights of the people.

(2) We examine the assertion of misunderstanding of facts and misapprehension of legal principles as to the violation of the Assembly and Demonstration Act.

Examining the evidence duly admitted by the court below, the defendant's facts constituting the crime in this part of the judgment of the court below are sufficiently recognized and likely to cause considerable social anxiety is sufficient to the extent of undermining social security and order, and the assembly and demonstration are not necessary to the extent of undermining our basic democratic order. Thus, all of the arguments on the appeal are groundless.

(3) We examine the misapprehension of legal principles as to the violation of the Assembly and Demonstration Act.

An assembly under Article 3 (1) 4 of the Assembly and Demonstration Act means that a specific or many unspecified persons gather temporarily at a certain place for a specific common purpose, does not have any influence on the difference of the number of persons who gather, and is likely to cause considerable social anxiety, and the assembly is determined by the purpose, character, method, etc. of the assembly. As recognized by the evidence duly admitted by the court below, the defendant, as recognized by the evidence duly admitted by the court below, representing the private participation in the assembly in the assembly in this case, participates in the assembly in the assembly in this case with the representatives of the 1st century and the National Student Federation of Students of the Republic of Korea and the Korean Students of the Republic of Korea, and actively prevents the union strike in the region of the Republic of Korea with the power of the U.S. and actively prevents the union strike of the Republic of Korea with the power of each sports group from spreading the present government in a real force (No. 88) and discussed the method of the large government, so the assembly in this case is not likely to cause any social anxiety in light of the purpose and nature of the assembly.

3. Ex officio determination

Before deciding on the assertion of unfair sentencing by the Defendant, the attorney-at-law, and the prosecutor, the records revealed that the court below accepted the part of the public prosecution on the charge of the State mother's so that it was prosecuted with the same content as the stated in the facts constituting the crime in its judgment and found the guilty guilty. As the prosecutor had modified this part of the facts charged at the time of the trial and after going through lawful procedures, it cannot be maintained the judgment of the court below which judged the facts charged prior to the alteration. Since the remaining violation of the Act was sentenced to one punishment as a relation of substantive concurrent crimes, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act and it is again decided as follows.

On July 13, 1974, the Defendant was sentenced to death penalty as a violation of the National Security Act at the ordinary military court conference at the Army. On February 15, 1975, the Defendant was sentenced to imprisonment with prison labor for life for the same month, and was sentenced to imprisonment with prison labor for a violation of emergency measures at the Ansan prison on February 15, 1975, and was released from prison on December 7, 1978, after being sentenced to suspension of qualification for three years at the Seoul High Court sentenced to suspension of qualifications for a violation of emergency measures at the Gwangju prison on December 8, 1979;

F. A person who joined a public training on January 20, 1985 and is in the position of the standing committee chairperson of the said public training from April 20 of the same year;

1. On January 29, 1985, between Non-Indicted 1 (Non-Indicted 1), 4 (Non-Indicted 4), 5 (Assistant 6 (Operating 6), and 7 (Secretary General) and others in the public training office located in the Jung-gu Seoul Metropolitan Government (detailed address omitted), Jung-gu, Seoul (Seoul), on January 29, 1985):

2.5.17:00 on February 17:00 of the same year, the term "National Assembly for Democratic System Disputes", which requires the withdrawal of the present government in the Pakistana Park located in Seoul, to be held jointly with other organizations such as the Democratic Unification National Assembly;

On May 17, 2.5 of the same year, at around 17:00, 300 members and 150 members and 3,000 students and 3,00 members are gathered in front of the Dara Park, and Non-Indicted 8 (Juvenile Minister) and Non-Indicted 9 (Ministry of Education and Publicity) are taking care of the above military, such as the "brucing Russ", to the public.

The Defendant instigates the Defendant to conduct any demonstration that is likely to cause considerable social anxiety, such as inspecting the state of demonstration in the vicinity, etc.

2. On April 18:00 of the same year, consultation with Nonindicted 1, 5, 6 (Chairperson of Operation), 7 (Secretariat), 10 (Chief Secretary), and 11 (Director of Execution Bureau) in the office of the Defendant located in Gangseo-gu Seoul Metropolitan Government (detailed Address omitted) and the method of the counter-defluence of the President of the former President of the Republic of Korea is to publish the statement of the counter-defluence by opening out the outfluence conference in the public sector;

Accordingly, in order by opening a meeting management committee for the attendance of Nonindicted 6, 3 (Alternatives), etc. in the private training, Nonindicted 3 passed a resolution to supervise the meeting of the external reporters in order;

Nonindicted 3 prepares a printed article (Evidence No. 4) with the content that “The visit to the United States of ○○C shall be withdrawn at that time,” “The present Government is a military self-government authority and aims to make long-term conspiracy, and delays the amnesty and release of the persons involved in the Busan Cultural Institute case, so the United States has changed the withdrawal of support from the present Government.”

on 12. 09:00 of the same month, Japan's daily (Manice) newspaper, Seoul District Office, etc. requests foreign organizations to dispatch out-of-the-spot reporters by phone calls;

At around 11:00 on the same day, there was a possibility of harming the prestige of the Republic of Korea and harming the security interests of the Republic of Korea by providing 12:30 on the same day and 1 copy of the above printed items to Nonindicted 2, a foreign reporter belonging to the Seoul District Office, who was found in the above contact, who was located in the daily newspaper of Japan and the Seoul District Office, and by spreading 1 copy of the above printed items, a Korean national gather and defends the state agencies established by the Constitution in Korea using foreign organizations, etc., and spreading false facts about them;

3. At around 19:00 on May 17, 196 of the same year, a mutual invitation is made to hold the “Civic Games to enforce the Responsibilities of Mine Involving the Seoul Sports Site” with Nonindicted 1, 5, 6, 7, 11, 12, etc. in the above public training office;

On the 17th of the same month, at around 19:00, Nonindicted 11 and 12, among Non-Indicted 11 and 12, from among Non-Indicted 250 members in the Seoul athletic field located in Jung-gu Seoul, Jung-gu, Seoul, Non-Indicted 11 and 12, Non-Indicted 1 and 12, who are in the vicinity of high-priced railing, are responsible for luminous death, and are charged with diversing a banner by breaking the banner, and spread 200 of printed items (No. 6) under the same divers (e.g., divers) to the citizens passing at the next place, and the "divers divers divers divers divers divers divers divers divers divers divers gals" in the front of the Seoul athletic field, instigate them to engage in any demonstration that may cause significant social uncertainty.

4. At around 19:00 on May 1 of the same year, there is a mutual invitation to hold any demonstration which requires the withdrawal of the political power before the end of the year jointly with organizations such as the Korean Federation of Students (hereinafter referred to as the “Korean Union”) and non-indicted 1, 4, 6, and 3 (Korean civil volunteers) at the public training office;

At around 18:00 of the same month, the Defendant: (a) packaged 1,500 printed items under the [No. 7] of the “National Competition for the Elimination of Mine Giology regime” (Evidence No. 7) to be distributed at the above public service office; (b) delivered them to Nonindicted 8 (Private Youth Department) and distributed them to Nonindicted 14 (Private Youth Department) and Nonindicted 8 on the roof of each subway, which spreads the above printed items to the citizens who had passed at the same time; and (c) distributed them to the public at the above public service office; and (d) took out relief, such as “Dr, Germany’s financial right to return to the public; and (e) he was responsible for Gwangju Giology,” and (e) delivered them to Nonindicted 8 (Juvenile Department).

The Defendant, as a species, scambling the arm in front of the arm’s license, and instigates the Defendant to conduct any demonstration that might cause considerable social anxiety by going out of relief such as “the responsibility for the death of luminous residents and the scambling,” etc.

5. At around 6.22.16:00 of the same year, Nonindicted Party 15 (Seoul Triman Vice-Chairperson) who was found in the public service office of the Republic of Korea, was requested to organize a Committee on Joint Countermeasures against Demodm Modivers for the Democratization Movement (hereinafter referred to as the "Public Subrogation"), which was committed by a social movement organization, to cope with the carbon pressure of the student movement aggravated after the U.S. Cultural Center agricultural incident, and

On the same day, at around 18:00, Nonindicted 6, 7, and Nonindicted 3, a public training executive officer, have been discussed in the same place, and as a result, public training, participate on the condition that public training shall hold a single joint countermeasure meeting rather than a joint countermeasure committee, but the representative is dispatched to the Defendant and Nonindicted 11;

Upon consultation between the Defendant and Nonindicted 11 and Nonindicted 11 on the issue of holding of a public subrogation again with the foregoing attitudes that had taken place at the same place at around 14:00 of the same month:

-the countermeasures meeting shall be held at the Seoul Metropolitan Council of Total Students on June 27, 09:30, and a letter of name shall be announced at the seat of the reporter conference;

-the content of the name is to deny the legitimacy of the current regime on the basis of the outcome of the Gwangju fighting and to establish anti-civil and anti-humanistic democracy, such as the suppression of labor movement and the pressure of driving school movements;

-preparation of the written bill shall be made in the transfer training;

resolution by the court below, and

On the same day from November 30 to 14:00 of the same day, in collaboration with Non-Indicted 16 (the chief of general affairs of the Gu Office), Non-Indicted 17 (the chairperson of the total number of students of the Gu Office), Non-Indicted 18 (the chairperson of the total number of students of the Gu Office), Non-Indicted 19 (the chairperson of the Seoul Central Council of Human Rights), and Non-Indicted 20 (the chairperson of the Seoul Central Council of Human Rights), a group under the name of the "Joint Measures for the Dempiction of the Non-Governmental Democratic Democratic Campaign" consisting of a group of the members of the Seoul Special Metropolitan City, Nowon-gu, Seoul Special Metropolitan City Council of Students with Non-Indicted 11, the representative of the Gu Office of the Gu Office of Seoul Special Metropolitan City with Non-Indicted 11, the representative of the Gu Office, who was present on behalf of the Gu Office, who was present on behalf of the Gu Office, who was present on behalf of the National Assembly.

The facts of the ruling shall:

1. Statements partially conforming thereto in the court of the original instance and statements conforming thereto in the court of the original instance;

1. Each part of the statement made by the witness at the court of the first instance against the non-indicted 2, 1, and 3

1. The statement corresponding to each suspect examination protocol against the accused prepared by the public prosecutor and judicial police officer;

1. Statement on Nonindicted 2 prepared by a senior judicial police officer, which is consistent with this;

1. A statement prepared by Nonindicted 2, which is consistent with the statement

1. Existence of each evidence of subparagraphs 1 through 8, which has been seized;

As a whole, there is evidence to recognize it.

Articles 14(2), 3(2), 3(1)4 of the Assembly and Demonstration Act, and Article 30 of the Criminal Act provide that Article 5 of the Criminal Act provides that Article 104-2(2), 3(1), and 30 of the Criminal Act provides that Article 14(1), 3(1)4 of the Assembly and Demonstration Act, and Article 30 of the Criminal Act provides that Article 14(1), and Article 30 of the Criminal Act provides that Article 14(1), 3(1)4 of the Assembly and Demonstration Act, and Article 30 of the Criminal Act provides that Article 38(1)2, and Article 50 of the Criminal Act provides that the above several crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, and Article 38(1)2, and Article 50 of the Criminal Act provides that a defendant shall be punished by imprisonment with prison labor for up to 2 years, and Article 56 of the Criminal Act provides that Article 18(1)1) through 4 of the Criminal Act shall be confiscated.

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

Judges Anal-Sagle (Presiding Judge) Practice