[1] Whether it constitutes a crime of diving or escape under the National Security Act only when an act of diving or escape, such as smuggling, into North Korea, is highly dangerous to the existence and security of the State or democratic fundamental order (affirmative)

[2] In a case where the defendant was prosecuted for violating the National Security Act on the ground that he provided convenience to Gap while he was aware that Gap was a person who was sealed in North Korea to the Republic of Korea again or attempted to sleep or commit it, the case holding that the defendant's act does not constitute a crime of offering convenience under the National Security Act on the ground that Gap's act of pushing in North Korea to help North Korea, such as friendship, etc. and receive compensation is hard to be seen as an act of obvious danger that may harm the national existence and security or democratic fundamental order

[1] In full view of the fact that the purpose of the National Security Act is to regulate anti-state activities that may endanger the national security, thereby securing the national safety, survival, and freedom of citizens, the National Security Act was amended in 191 by adding a subjective requirement, such as " knowing that it may endanger the existence and security of the State or democratic fundamental order," and the element of " knowingly knowing that it may endanger the existence and security of the State or democratic fundamental order," under the National Security Act, should be reduced to apply only to "where there is an obvious risk to endanger the national existence and security or democratic fundamental order." In particular, North Korea's smuggling act does not constitute a crime of diving or escape under the National Security Act, and in addition, only the act of diving or escape, which is obviously dangerous to endanger the national existence and security or democratic basic order, constitutes a crime of diving and escape.

[2] In a case where the defendant was prosecuted for violation of the National Security Act by providing convenience, such as funds and effort, to help North Korea and escape from North Korea, with the knowledge that the defendant was a person who was released from North Korea after having been sealed to North Korea to North Korea or attempted to do so, the case holding that the defendant's act does not constitute a crime of offering convenience under the National Security Act, in light of the fact that the defendant's act of protruding North Korea to help North Korea to escape from North Korea and to receive compensation is hard to be seen as an act of obvious danger of harm to the national existence and security or democratic fundamental order, since the defendant's act does not constitute a crime of offering convenience under the National Security Act.

[1] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1) and (2), and 6(1) of the National Security Act / [2] Articles 6(1) and 9(2) of the National Security Act; Article 9(1) of the Inter-Korean Exchange and Cooperation Act; Article 27(1)1 of the former Inter-Korean Exchange and Cooperation Act (Amended by Act No. 12396, Mar. 11, 2014); Article 325 of the Criminal Procedure Act

[1] Constitutional Court en banc Order 89Hun-Ga113 delivered on April 2, 1990 (Hun-Ga2, 49)

Defendant

Defendant

Kim Jong-won et al.

Law Firm Han-ro, Attorney Choi Jong-gil

Chuncheon District Court Decision 2013Ma114 decided September 26, 2013

The part of the judgment of the court below against the defendant is reversed.

The defendant shall be innocent.

1. Grounds for appeal;

A. Co-defendant 1 of the court below decided that the act of Co-defendant 1 of the court below recognized the above act as "ex-defendant 1", "ex-North Korea", "ex-North Korea", and "ex-North Korea" as "ex-North Korea" and "ex-North Korea" under Article 6 of the National Security Act and cannot be deemed as "ex-North Korea" or "ex-North Korea" as "ex-North Korea." However, the part of the court below's conclusion that the above act of Co-defendant 1 of the court below recognized the above act as "ex-North Korea"

B. Co-defendant 1 of the court below and the defendant did not have a perception that it may endanger the existence and security of the State or democratic fundamental order.

C. The court below's decision that Co-defendant 1's act of escape from North Korea to North Korea can ultimately be deemed to contribute to the peaceful unification between South and North Korea and that the purpose of inter-Korean exchange and cooperation can be evaluated to have been achieved. Thus, the Inter-Korean Exchange and Cooperation Act (hereinafter "Inter-Korean Exchange Act") shall apply to this case, and in such a case, the National Security Act shall not be applied as a matter of course, and the National Security Act shall not be applied to this case. However, the court below's decision that the act of Co-defendant 1 shall be applied to the act of Co-defendant 1 without holding any decision as to the blank of the law between the Inter-Korean Exchange and Security Act and the law

2. Determination

A. Summary of the facts charged in this case

[Attachment] The entry is as follows.

B. The judgment of the court below

The court below found the defendant guilty by taking account of co-defendant 1 and 3's legal statement, co-defendant 1 and the judgment of the court below against the defendant.

C. Judgment of the court below

1) Article 9(2) of the National Security Act provides for punishing a person who provides convenience with the knowledge of the fact that he/she commits or intends to commit a crime under Articles 3 through 8 of the same Act, and Article 6(1) of the same Act provides for punishing a person who has escaped from an area under the control of an anti-government organization, or escaped from such area with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order. Therefore, in order to establish a crime of offering convenience to the defendant, the act of co-defendant 1 of the court below constitutes “an act under the control of an anti-government organization or endangering the national existence and security or democratic fundamental order,” and the act of Co-defendant 1 of the court below constitutes “an act under the control of an anti-government organization,” and should be evaluated as having been pushed-in with the knowledge of the fact that Co-defendant 1 of the court below. Accordingly,

2) Of the elements of meetings under Article 8(1) of the National Security Act, the term “influence and security of the nation” refers to threatening and infringing upon the independence of the Republic of Korea, aggressioning the territory, destroying and breaking the Constitution, functions of the law and the constitutional organ, etc. The term “influence to the fundamental order of free democracy” means all violent control and arbitrary control, i.e., anti-government organization’s control, e., e., excluding single-person classic or single-party classic control, making it difficult to maintain the rule of law based on the basic principles of freedom and equality, and specifically making it difficult to maintain the order of rule of law based on the majority’s autonomy, liberty and equality, separation of powers, parliamentary system, multiple party system, election system, private property, and market economy, and destroying and altering our internal system, such as economic order and judicial independence, which are within the framework of the above provision of Article 1(2) of the National Security Act, and should be reasonably interpreted in light of the purpose of Article 98(1) of the Constitution and the Constitutional Court en banc Decision.

3) In full view of the above legal principles, the National Security Act’s purpose is to ensure the safety, survival, and freedom of the nation by regulating any anti-state activities that may endanger the national security, thereby securing the national safety and survival and freedom of citizens, the National Security Act’s amendment was made in 191 by adding subjective requirements to the elements such as the crime of diving and escape under the National Security Act, which is “ knowing that it may endanger the existence and security of the nation or democratic fundamental order.” The elements of the National Security Act’s “ knowing that it may endanger the existence and security of the nation or democratic fundamental order” should be reduced and applied only to “the case where there is an obvious risk that may endanger the national existence and security or democratic fundamental order.” In full view of the above, all of the locked and escape acts, in particular, North Korea’s smuggling with North Korea does not constitute a crime of diving and escape under the National Security Act, and only the act of diving and escape, which is obviously dangerous to the national security or democratic fundamental order, constitutes a crime of diving and escape.

In full view of the evidence duly adopted and examined at the court below, Co-defendant 1 of the court below's judgment is acknowledged that Co-defendant 1 of the court below offered convenience, such as funds and efforts, to help North Korea and North Korea in order to recover the remains of his own, knowing that Co-defendant 1 of the court below was to help North Korea and receive economic compensation by pushing-in with the repair of the Hawon-gun, Gyeongbuk-do, Gyeongbuk-do, one's own will and received money as compensation. However, even though Co-defendant 1 of the court below's intention does not only want to help North Korea from a humanitarian perspective, but it is difficult to view that Co-defendant 1 of the court below's own act as a relative to help North Korea and North Korea and to help North Korea to escape from North Korea, and it is hard to view that Co-Defendant 1 of the court below's own act as a person of a free democracy and to solve his economic problems, such as helping North Korea to escape from North Korea, or that it is hard to say that it was an act to return North Korea's fundamental order.

The prosecutor asserts that, in the case where Co-Defendant 1 of the court below's arbitrary entry into the North Korean authority is likely to harm the nation's existence and security or democratic fundamental order, Co-Defendant 1 of the court below's assertion that such an act may endanger the nation's existence and security or democratic fundamental order because Co-Defendant 1 of the court below's arrest or voluntary cooperation to the North Korean authority is likely to harm the North Korean authority because it has a strong information value in South Korea.

As seen earlier, it is clear that Co-Defendant 1’s act does not pose a threat to the liberal democratic basic order, since it does not pose a difficulty in maintaining the rule of law in accordance with the basic principles of autonomy, freedom and equality of the majority of the people by excluding the reading of one person or one person of an anti-government organization, namely, an anti-government organization, and making it difficult to maintain the rule of law by the majority of the people.

Therefore, the act of Co-defendant 1 of the court below is an act that may endanger the national existence and security.

First of all, it is difficult to conclude that Co-Defendant 1’s act in the court below is highly likely to high the tension between South and North Korea. In light of the fact that Co-Defendant 1’s act in the court below’s domestic affairs, even if there is a high risk of high tension due to Co-Defendant 1’s act, the purpose of the National Security Act is to regulate anti-state activities. Even if the tension between South and North Korea is high due to the act of Co-Defendant 1 in the court below, it cannot be said that the act of Co-Defendant 1 in the court below, who entered North Korea to escape North Korea, is an anti-state activity that

Then, Co-defendant 1 of the court below's judgment is likely to use the risk of being arrested or used in proportion to the activities of propaganda, inciting or acting in South Korea through voluntary cooperation. However, it cannot be deemed that there is a clear danger that Co-defendant 1 of the court below's judgment may cause harm to the national existence and security, solely on the ground that the third act was involved, as a assumptive judgment, there is a risk of being used in the activities of co-defendant 1 of the court below.

Therefore, the prosecutor's above assertion is without merit.

In addition, in the event that North Korea is sealed for the purpose of exchange and cooperation, such as trade with North Korea without permission from the authorities, unless there are other circumstances to deem that the activities after the smuggling constitute an act that may endanger the existence and security of the State or democratic fundamental order, Article 27(1)1 of the Inter-Korean Exchange and Cooperation Act shall be punished. Meanwhile, as in the instant case, it is clear that in the present situation where the South and North Korea is a simple smuggling who is not the purpose of exchange and cooperation but does not have any other circumstances to regard it as an act that may endanger the existence and security of the State or democratic fundamental order, punishment is necessary. However, it is not clear that the provision of the National Security Act (applicable to acts that endanger the existence and security of the State or democratic basic order) or the provision of the punishment of the Inter-Korean Act (applicable to acts that endanger the existence and security of the State or democratic basic order) and that it does not constitute a violation of the National Security Act, such as the provision of telecommunication services between South and North Korea and North Korea, and thus, it does not constitute a simple interpretation of the basic order of national security.

Ultimately, Co-Defendant 1’s act of smuggling cannot be deemed as an act that may endanger the existence and security of the State or democratic fundamental order. Thus, the defendant’s act of offering convenience, which was instituted on the premise that the act of smuggling in this case is an act that may endanger the existence and security of the State or democratic fundamental order, does not constitute a crime of offering convenience under the National Security Act.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the part of the judgment of the court below against the defendant is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged of this case are as stated in Article 2-1(a) of the Criminal Procedure Act, and it constitutes a case where there is no proof of a crime as stated in Article 2-2(c) of the above Act, and thus, it is so decided as per Disposition by the court below.

Judges Choi Sung-ro (Presiding Judge)