Defendant

Both parties

Profit sources (military prosecutors, prosecutions, and stuffs; public trial)

Law Firm Barun Law LLC, Attorneys Signature-soo et al.

Seoul Eastern District Court Decision 2014Gohap10 Decided May 15, 2015

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

1. Summary of grounds for appeal;

A. Defendant

1) Violation of the Constitution, misunderstanding of legal principles or misunderstanding of facts

A) Part of political interventions

(1) Article 94 of the former Military Criminal Act (amended by Act No. 12232, Jan. 14, 2014; hereinafter the same) and Article 94 of the former Military Criminal Act (amended by Act No. 12232, Jan. 14, 201; hereinafter

(2) Each cyber activity of the Defendant and the unit members of the ○○○○○○ Group as stated in this part of the facts charged does not constitute a publication of political opinions as stipulated in Article 94 of the Military Criminal Act, and there was no intention to publish political opinions to the Defendant.

(3) Each of the above actions by the Defendant and the ○○○ Branch’s unit members is not unlawful as a legitimate act that does not violate legal or social rules.

B) Parts of destruction of evidence

(1) Since Article 94 of the Military Criminal Act is unconstitutional, the crime of destruction of evidence is not established even if the evidence was destroyed on the crime of violating the above provision.

(2) No information shall be destroyed because most of the initial Nowon-North Korea did not contain any information.

(3) The Defendant did not have any criminal intent to destroy evidence.

(4) This part of the Defendant’s act is not unlawful as a legitimate act that does not contravene legitimate execution of duties or social rules by a superior’s order.

2) Unreasonable sentencing

The punishment sentenced by the court below (two years of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence sentenced by the court below is too uneasible and unfair.

2. Ex officio determination

In the first instance trial, a prosecutor has filed an application for changes in the indictment with the purport of changing the schedule of crime (1) and (2) of the judgment of the court below, which is the part corresponding to the specific act of publication of political opinions among the original facts charged as to political intervention, as shown in the table of crime committed in the annexed Table (1) and (2) of the judgment of the court below, and this court has permitted this change. Accordingly, the judgment of the court below which sentenced one punishment on the ground that the remaining part of the judgment and the destruction of evidence are concurrent crimes in the former part of Article 37 of the Criminal

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the arguments on the grounds for appeal by the defendant and the prosecutor, and the judgment of the court below is reversed, and it is again decided as follows through pleading.

In addition to revising part of the facts of the lower judgment’s criminal facts as indicated below, the facts charged by this court are as stated in the corresponding column of the lower judgment, and therefore, they are cited as it is in accordance with Article 369 of the Criminal Procedure Act (On the other hand, the facts charged by political officers in this part are deemed to have been conspired with Nonindicted 3 or Nonindicted 4, but their conspiracy is irrelevant to the recognition of the criminal liability of the Defendant, and Nonindicted 3 and Nonindicted 4 dispute over innocence after being prosecuted separately and tried, the issue of conspiracy with Nonindicted 3 or Nonindicted 4 is excluded without direct determination in the instant case).

[Revision]

① In the first half of the fourth through fifth of the judgment of the court below, “Non-Indicted 5, and Non-Indicted 5, which are known by the National Assembly” shall be deleted.

② From November 18, 2011 to October 15, 2013, the Defendant conspired with 120 members of the unit belonging to ○○○○○○○○○ Group, as indicated in the “recognition” column of the attached Table Nos. 6 through 9, respectively, and subsequently published a political opinion by taking advantage of his/her status by preparing to 8,626 comments, including web line or videos, on Internet sites, SNS, etc., or by tamping another person’s writing.”

③ From November 18, 2011 to September 25, 2013, the lower court changed the term “drawing, etc. writing” of the 5th page 13 to “a political opinion was published by means of preparing comments on Internet sites, SNS, etc. or putting another person’s writing on a position at least 441 occasions, as the part indicated as “recognition” in the attached Table of Crimes List (2) from November 18, 201 to September 25, 2013.”

(4) All sections 18 through 6 of the judgment of the court below shall be deleted.

The summary of the evidence of the above crime is as shown in the corresponding column of the judgment of the court below, except for the addition of "the written statement dated November 1, 2013 by Non-Party 1, Non-Party 2, Non-Party 6, Non-Party 7, Non-Party 8, Non-Party 9, Non-Party 10, Non-Party 10, Non-Party 11, Non-Party 13 in the part of the summary of the evidence [Article 1] of the judgment of the court below as stated in the summary of the evidence [Article 369 of the Criminal Procedure Act].

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 94 of the former Military Criminal Act (amended by Act No. 12232, Jan. 14, 2014); Article 30 of the Criminal Act (amended by Act No. 12232, Jan. 14, 201; Article 30 of the Criminal Act); Articles 155(1) and 31(1) of the Criminal Act (the occupation of a certified evidence destruction teacher and the choice of imprisonment)

1. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2 and (2), and Article 50 (Aggravation of Punishment and Punishment of Destruction of Evidence against Non-Indicted 1 who is the most severe punishment and punishment)

1. Political part

A. Whether Article 94 of the Military Criminal Act is unconstitutional

1) Whether freedom of political expression is infringed

A) Determination criteria

The freedom of political expression, as a component of the liberal democratic fundamental order, has superior effect compared to other fundamental rights, and it is not absolute, and thus, may be restricted pursuant to Article 37(2) of the Constitution. Furthermore, the guarantee of fundamental rights of the people is based on the existence and security of the State. Since the purpose of the State’s existence and security lies directly, in cases of military personnel, civilian employees, etc., who are members of the military organization, the freedom may be more restricted compared to the general public (see, e.g., Constitutional Court Order 2011Hun-Ba32, Aug. 28, 2014; 201Hun-Ba18, 201Hun-Ba18, 2012Hun-Ba185 (merged); Constitutional Court Order 2008Hun-Ma638, Oct. 28, 2010).

B) Determination

For the following reasons, Article 94 of the former Military Criminal Act cannot be seen as infringing on the freedom of political expression in violation of Article 37(2) of the Constitution.

(1) Article 94 of the Military Criminal Act is to guarantee the political neutrality of the Armed Forces and its legislative purpose is justifiable.

(2) Prohibition of publication of political opinions and criminal punishment against military personnel and civilian employees is appropriate as a means to achieve the above legislative purpose.

(3) As seen in Article 94(2)(3) of the former Military Criminal Act, the elements of a military crime may be limited to the following (2)(b). Furthermore, in interpreting Article 94 of the former Military Criminal Act, the court may minimize the infringement of the freedom of political expression of military personnel and civilian employees if it is limited to “the case of using the status of a military personnel or civilian employee” and interpreted Article 94 of the former Military Criminal Act by reducing that the case constitutes the elements of a crime. In addition, as the statutory penalty is “long with imprisonment without prison labor for not more than two years,” it is possible to take minor measures according to the specific contractual relationship. Furthermore, the military personnel and civilian employees are distinct in their status and status, while the public interest, which is political neutrality of the military, is a very important value directly required by the Constitution (Article 5(2) of the Constitution). Considering these circumstances, Article 94 of

2) Whether it violates the principle of legality and the principle of clarity

A) Determination criteria

The principle of no punishment without the law, which is guaranteed through Articles 12 and 13 of the Constitution, refers to a crime and punishment must be determined by law. The principle of clarity derived from such principle of no punishment without the law refers to what is intended to punish law, what can be predicted by anyone who can determine the punishment. Accordingly, the elements of punishment should be clearly defined. However, even if the elements of punishment should be clear, all the elements of punishment should be defined as simple descriptive concept, and even if a person uses a concept that requires complementary interpretation of judges somewhat wide range, if a person has a sound common sense and ordinary legal sentiment, it does not violate the clarity of the punishment law required by the Constitution (see Supreme Court Decisions 2005Do464, Jul. 26, 2007; 2004Do464, Nov. 25, 2004; 2004Hun-Ba397, etc.).

B) Determination

For the following reasons, Article 94 of the Military Criminal Act, in particular, Article 94 of the former Military Criminal Act, which imposes criminal punishment on a person who has published a political opinion by other means, shall not be deemed to violate the principle

(1) Article 94 of the Military Criminal Act is a soldier, military employee, etc. who is in a position to serve the whole citizen, not a general citizen, but a civilian military employee.

(2) The Constitution directly prescribes that the political neutrality of the Armed Forces should be observed without statutory reservation (Article 5(2) of the Constitution), and the political neutrality of the Armed Forces is one of the important constitutional values.

(3) Article 94 of the former Military Criminal Act provides for the purpose of ensuring the observance of the political neutrality of the Armed Forces, which is the value directly required by the Constitution, as seen above, and stipulates that the term “conscepting a political organization” and “political movement” are vibly constituent elements. Considering the legislative intent, language, etc. above, if a person to whom Article 94 of the former Military Criminal Act applies is a person with a sound common sense and ordinary legal sentiment, the term “public announcement of political opinions” prohibited by Article 94 of the former Military Criminal Act is limited to the act of publishing opinions that may undermine the military political impartiality, such as “public announcement of support or opposition to a specific political party or a specific political person or his/her policies or activities.”

(4) Article 94 of the former Military Criminal Act is a statutory penalty for not more than two years, and a minor disposition may be made in consideration of a specific normal relationship depending on a case.

3) Sub-decisions

Article 94 of the former Military Criminal Act does not violate the Constitution. Therefore, the defendant's assertion on this is without merit.

B. Whether such publication constitutes “political opinion” under Article 94 of the Military Criminal Act

1) The meaning of “public announcement of political opinions” under Article 94 of the Military Criminal Act

A) As seen earlier, Article 94 of the former Military Criminal Act provides for the purpose of ensuring the observance of the political neutrality of the national armed forces, which is the value required by the Constitution, and Article 94 of the same Act provides that the term “conscepting a political organization” and “political campaign” shall be a parallel element with “where a political opinion is published by speech, document or any other means” and “where a person is subject to Article 94 of the former Military Criminal Act and has a sound common sense and ordinary legal sentiment,” the act of publishing a “public opinion” prohibited by Article 94 of the former Military Criminal Act in light of the above legislative intent and text, etc. should be determined by the act of publishing an opinion that may undermine the political impartiality of the military, such as “public announcement of support or opposing opinion, etc. on a specific political party or a specific political person or a person’s policy or activities. In this regard, several detailed criteria related to such “public announcement of political opinion” are as follows.

(1) Even if the name of a particular political party or politician is not mentioned directly, it may be said that it is possible to specify it in the content of the expression.

(2) If the content of each part of the Schedule of Crimes (1) and (2) is apparent or is obvious before and after it, it inevitably leads to support for or opposition to a specific political party or politician, and thus, it may be deemed a case where the facts are published. The same applies to the case of writing on national defense or security or public relations.

(3) Meanwhile, in light of Article 8 of the Constitution guaranteeing the freedom of establishment of political parties and their activities, Article 27(4) of the Constitution providing the principle of presumption of innocence, etc., the military intervention should not be deemed to constitute a political case involving related political parties or political parties until the dissolution of a political party is determined based on a party dissolution adjudication.

B) Furthermore, the court has the authority to interpret and apply statutes, including constitutional interpretation (see Supreme Court Order 2014Kao523, Nov. 27, 2014). If a statutory provision can be applied as it would result in unconstitutional consequences, it should choose an interpretation consistent with the Constitution for the formation of a uniform legal order with the highest norm, and if it would be consistent with the order of the Constitution by restricting the application requirements or the scope of validity thereof, it should consider the constitutional and positive aspect while excluding interpretation that may result in unconstitutionality, and thus, it is the general principle of the Constitution that “the provision of 2004Do7488, Jan. 27, 2005; 2015Do13103, Aug. 30, 2016; 2005Do1605, Apr. 1, 2005) to punish a civilian military employee who did not engage in an election campaign with the meaning of “an act of planning or public order” under the former Public Official Election Act.

2) Determination

A) In principle, whether an individual act constituting a single comprehensive crime satisfies the elements of the crime and satisfies them shall be determined by taking into account the specific contents and context of the crime (see Supreme Court Decision 2013Do15113, Dec. 23, 2015). In full view of each of the above evidence, each act described as "recognition" in the attached Table Table (1) and (2) shall be deemed to constitute "a case where a notice of the opinion of support or opposition to a specific political party or a particular political person in the context of the specific contents or before and after, or after, the context of the crime is deemed to constitute "a case where a notice of the opinion of support or opposition to a specific political party or political person in the context of the specific contents or before and after, or after, the crime is a case where a notice of facts related to policies, activities, etc. related to support or opposition to a specific political party or political person, etc." and it is reasonable to deem that the act constitutes a violation of military political neutrality.

B) In addition, comprehensively taking account of the following circumstances acknowledged by the various evidence as seen earlier, the unit members of the ○○○○○ Group, including the Defendant, are recognized as having used their status in performing each act indicated in the “recognition” column in the annexed crime sight table (1) and (2).

(1) The Defendant and the unit members of the ○○○○○ Group, which are inherent in the ○○○○○○○ Group, engaged in response activities on the Internet.

(2) The direction for the performance of all response operations by the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was conducted in a way that, with the Defendant’s approval, some unit members of the two units form a detailed operation phrase, which included the details of the operation on the NAV secret page with the Defendant’s approval, sent a disguised letter to the unit members of the ○○○○○○○○

(3) After receiving the aforementioned disguised letters, the unit members of the ○○○○○○ Group individually connected NAVP, confirmed the details of the operations, and, in accordance with the operational instructions, posted comments on Internet articles, written comments on SNS, or written another person’s comments on SNS, and thereafter, the unit members reported the number of times they responded to the above NAPs through comments.

(4) The unit members of the ○○○○○○ Group received not only the above response activities under the Defendant’s order, but also the allowances of KRW 250,000 per month in return for the SNS activities, such as Twitter and Blogs, based on the basic direction of the above direction.

(5) Since response to an important matter has continued for at least one-half weeks, the unit members of the ○○○○ Group had to refer to the direction of response operations in the course of posting a monthly allocation on the above SNS, etc.

(6) The unit members of the ○○○○○○○○ Group submitted the results of the response operations to a close range, and reported other activities, such as twitters and tables, prepared by the unit members of the ○○○○○○○○○○ Group, and used the data to verify the results as data for the payment of overtime allowances worth KRW 2.50,000.

(7) The Defendant was reported through Nonindicted 14 on the part of Nonindicted Party 14 with respect to the writing that ○○○○ Group’s unit members support on the Internet or criticizeed e-mail, and had the author of the relevant writing move to another unit.

(8) As a military unit, the ○○○○○○○○○ Group is more closely related to the principle of a superior uniform than any organization. The Defendant, as the head of the ○○○○○○○ Group, can be deemed to have a very significant degree of control or malicious influence over the response operations activities of the ○○○○○○ Group. The Defendant also stated in a military investigative agency that “it may not be said that it is within the organization.”

(9) The unit members, including the Defendant, carried out response operations using devices supplied by the military unit, and the unit members of the ○○○○○ Group reported on the next day’s performance of response operations.

C. Whether the defendant and the ○○○ assistant members have committed a political offence

B. In full view of the following circumstances acknowledged by the evidence revealed in Section 2-B of the above, considering the fact that the Defendant had an intention to participate in politics at the time of posting a letter on his own or ordering the members of the ○○○○○○○ Group to post a letter on SNS or B, and furthermore, considering the fact that the ○○○○ Group’s unit recognized it as an “in the course of operations” when posting a letter on SNS or B, it can be sufficiently recognized that the unit members of the ○○○○○○○ Group had an intention to participate in politics when posting each part of the “recognition” in the attached Table (1).

1) It is clear that the publishers of each article, including the defendant, recognize the specific contents of the article as it is and posted each article. In recognizing the criminal intent of political intervention as stipulated in Article 94 of the former Military Criminal Act, as stated in the judgment of the court below, it cannot be deemed that they need political intervention and do not require recognition that they are the result of damaging military political neutrality (it cannot be deemed that the crime of political intervention as stipulated in Article 94 of the former Military Criminal Act is a result or a crime of specific danger). Therefore, if the contents of the article are related to a specific political person or political party, and thus fall under the publication of political opinion as stipulated in Article 94 of the former Military Criminal Act, it is recognized that each posted person has the criminal intent to publish political opinion.

2) The Defendant, rather than directly responding to national defense or security issues, was instructed to directly respond to a specific political party or politician. In the course of instructing a team that prepares a response logic, the Defendant contained an expression that contains a primary criticism against a particular political party or politician.

3) In addition, the Defendant instructed or inserted a letter to respond to any matter that could not be found related to national defense security. In other words, the Defendant instructed or directly responded to the matter related to free school meals, such as the case related to free school meals, labor realization, Nonindicted 5, Nonindicted 15, and Nonindicted 16, the case concerning the tear of tear, and the case concerning the extension of voting hours.

4) Some of the unit members of the ○○○○○○○○○○○○ group also discussed whether they should respond to these issues because they are not about national defense or security, and sought opinions from the Defendant directly or through a superior. In particular, the Defendant expressed his opinion that it would be desirable not to respond to the instructions given to Nonindicted 18 members because they are politically sensitive issues. However, the Defendant impliedly and continuously instructed him to respond to them.

5) In addition, the Defendant directed several times the counter-parties of the Korea-U.S. FTA, and the Defendant also stated in the Military Prosecutors’ Office that “The counter-parties to the Korea-U.S. FTA are not subordinate North Korea.”

6) Even between October 2012 and November 2012, the Defendant issued individual instructions to Nonindicted 8, Nonindicted 14, Nonindicted 19, Nonindicted 20, and Nonindicted 21, among the unit members of the ○○○○○○○○ Group, to prepare and disseminate “the details of slandering candidates and supporting Nonindicted 16, Nonindicted 15, and Nonindicted 22 candidates”, and thereafter, it was likely to encourage the Defendant to bring about the implementation of the orders in accordance with the direction. Meanwhile, if the Defendant was on board the election at the situation room immediately after the presidential election or the presidential election, then the Defendant exceeded 00 unit members of the ○○○○ Group.

7) The Defendant reported that some of the unit members of the ○○○○○○○ Group posted a letter of criticism that supports the free will of labor or criticizes the free will of workers, and led to the Defendant to move into another unit. On the other hand, among the unit members of the ○○○○○ Group, many of the unit members of the ○○○○○○ Group prepared a large number of letters that slanders the free will of the people or the people of the party or the people of the party, but there was no problem that the unit members of the ○○○○○○ Group, such as Nonindicted 14, etc. reported this article to the Defendant or the Defendant separately

8) In the event of a situation meeting, the Defendant directed the members of the ○○○○○ Group to refrain from political expression if they respond to articles, SNS, etc. However, in the course of preparing a report that is reported to the outside of the cyber headquarters, the name of a political party or politician and other political expressions were all deleted or anonymous. In light of this, the Defendant also tried to prevent the likelihood that the content of the response of the ○○○○○○ Group might be likely to undermine political neutrality.

9) The Defendant was fully aware of various regulations regarding military political neutrality, and stated that ○○○○ unit members provided education on this.

10) Meanwhile, among the unit members of the ○○○○○○○ Group, some of the unit members stated to the effect that the military investigative agencies had been aware that there was a concern for a problem in terms of political neutrality, or that there was only the content concerning a specific political person or political party in terms of the content of the operational instruction. In addition, in the case of other unit members, there was a statement to the effect that there was a lot of comments about why ○○○○ Group members “us should dyp this?” inside the unit members of the ○○○○○○ Group,” because they were not written directly, and there was a lot of comments about why ○○○ Group members “us should dyp this?”

D. Whether there exists an open recruitment relationship between the defendant and the ○○ unit unit members

1) Relevant legal principles

A) Since the co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the execution of a crime through the intent of co-processing and the functional control by the co-principal, a person who did not directly share and implement the elements of a crime among the competitors may be held liable for the so-called crime as a co-principal depending on whether the above requirements are met. In order for a co-principal who did not directly share and implement the elements of a crime to be recognized as a co-principal, the crime cannot be exempted as a so-called co-principal unless he is deemed to have functional control through an essential contribution to the crime, not just as a mere accomplice, but also as a functional control through an essential contribution to the crime (see, e.g., Supreme Court en banc Decision 98Do321, May 21, 1998; Supreme Court Decision 2002Do95, Jun. 24, 2004; Supreme Court Decision 201Do32165, Mar. 21, 2005>

B) In light of all the circumstances, including the means and patterns of crime, the number of participants and their inclinations, the time and characteristics of the place for the crime, the possibility of contact with others in the course of the crime, and anticipated reaction with others, etc., the conspiracys could have predicted or sufficiently anticipated that incidental crimes would be derived during the commission of the crime or going further to achieve the intended purpose, but they did not take any reasonable measures sufficient to prevent such occurrence, and eventually, if the crime was anticipated to occur, then they should be deemed to have a functional control over the crime not only by the initial conspiracys, but also by the functional control over the crime (see, e.g., Supreme Court Decisions 2007Do428, Apr. 26, 2007; 2007Do4750, Sept. 20, 2007; 2007Do4750, Oct. 21, 2010).

C) At least two co-offenders who are jointly engaged in a crime do not legally require a certain type of punishment, and only two or more persons commit a combination of intent to jointly process a crime and realize the crime. Although there was no process of the whole conspiracy, if a combination of intent is formed in order or impliedly through several persons, then the conspiracy is established. As long as such conspiracy was conducted, even those who did not directly participate in the conduct are held liable for the other co-principal’s act (see, e.g., Supreme Court Decisions 2012Do10629, Jan. 24, 2013; 2013Do5214, Sept. 26, 2013).

D) Meanwhile, in order to recognize such conspiracys, strict proof is required. However, in a case where the Defendant denies a conspiracy, which is a subjective element of a crime, it is inevitable to prove it by means of proving indirect facts or circumstantial facts having considerable relevance in light of the nature of things given the nature of things. In such a case, what constitutes indirect facts having considerable relevance ought to be reasonably determined based on the normal empirical rule based on a close observation or analysis (see, e.g., Supreme Court Decision 2011Do9721, Dec. 22, 2011).

E) In relation to the conspiracy of co-principals, it is not necessary to explain in detail the detailed date, time, place, details, etc. of the conspiracy with respect to the conspiracy of co-principals, and it is sufficient to explain only that the conspiracy of intent was consistent (see Supreme Court Decision 2006Do755, Nov. 13, 2008, etc.).

2) Determination

With respect to the meaning of the public contest relationship between the defendant and the unit members of the ○○○○○○○○○ Group, the prosecutor asked that the defendant and the unit members of the ○○○○○○○○○○○○○○○○○○○○○○○○○○ unit mean individual public collusion between the defendant and the unit members, not the overall public invitation. In full view of the following circumstances in addition to the various circumstances described in paragraphs (b) and (c) above, the authors of the part of the unit members of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ group, as a result, did not take a reasonable measure to prevent such collusion.

A) Among the contents of the Defendant’s order to respond to the Defendant’s ○○○ Group’s unit members and the countermeasures therefor, the content of supporting or criticizeing a specific political person or a specific political party, such as Nonindicted 23, Nonindicted 24, Nonindicted 15, and Nonindicted 25, etc., included the same matters as the content of the part indicated as “recognition” among the “recognition” in the attached list of crimes (1). The unit members of the ○○○○ Group posted each of the above parts on SNS or Blogs according to the Defendant’s order.

B) However, even if the unit members of the ○○○○○ Group do not themselves respond to the response order, they did not suffer any disadvantage to the nonperformance itself, and accordingly, they did not perform the response operations in the event of failure to receive the letters of the operational instruction, and only did not receive allowances in the event of failure to receive monthly allocation. In addition, among the unit members of the ○○○○○ Group, their talks about whether to carry out the operations are divided or confirmed.

C) Meanwhile, among the unit members of the ○○○○○○○ Group, a statement was made as to the fact that a considerable number of political comments was an act of personal deviation at the beginning of the investigation process of the military. However, there was also a circumstance that, within the ○○○○○○ Group, the investigator was asked about the investigator during the investigation period and the response thereto, and the Defendant, etc. directed the unit members of the ○○○○○○○○○ Group to jointly share the matters asked to question and the response thereto, and the Defendant, etc. stated that the unit members did not write down a letter if there was no operational instruction. In light of the aforementioned various circumstances, it is difficult to regard the notice of political comments by the unit members of the ○○○○○○ Group as their personal deviation.

D) Even if a part of a family work constitutes an individual deviation exceeding the Defendant’s instructions, insofar as the Defendant continuously instructed certain unit members of ○○○○ Group to respond to political matters relating to a specific political person or political party for a long time, it could have anticipated or sufficiently anticipated that certain unit members may post a political writing exceeding their own instructions (the Defendant also stated in the military investigation agency to the effect that the Defendant explicitly recognized that the unit members of ○○○○○○○ Group could use a political writing in the course of their operations). Nevertheless, since the Defendant did not take reasonable measures sufficient to prevent such possibility, each act of certain unit members ought to be deemed to exist.

E. Whether the act was legitimate

B. In full view of the aforementioned legal principles (see, e.g., Supreme Court en banc Decision 96Do3376, Apr. 17, 1997; Supreme Court Decision 2011Do5329, Nov. 28, 2013), the Defendant’s act cannot be deemed as an act by law or a lawful performance of duties, or a justifiable act that does not violate social rules, in addition to the following circumstances acknowledged by the evidence revealed above.

1) Article 5(2) of the Constitution of the Republic of Korea provides for the observance of the political neutrality of the Armed Forces without legal reservation. Moreover, even according to the Armed Forces Security Command Ordinance and cyber psychological operations guidelines, which recognized the Defendant as the basis for the operation, political expression of opinion during the operation is strictly restricted.

2) Each act indicated as “recognition” among the “recognition” in the annexed list of crimes in paragraphs (1) and (2) does not inform the general public of the distribution of false facts in North Korea’s cyber space, and the defluoration of state affairs, etc., but constitutes a case where a political opinion is published beyond this as seen earlier.

3) The Defendant, directly or through the ○○○○○○○○○○○○○○○○○○○○ group, informed of a notice of the purport of criticism against the government or political parties in cyber spaces, without properly verifying whether the notice was written for the purpose of the people’s sound criticism, he/she conducted response activities with a view to forming a favorable public opinion against the government, specific political parties, or specific political parties.

2. Part of building destroyed evidence;

(a) the existence of evidence in the initial Nowon-gu;

1) Relevant legal principles

In the crime of destroying evidence, the term "Evidence" means all the data recognized by an investigative agency, a court or a disciplinary agency to be related to confirming the existence of the State's penal authority or disciplinary authority in relation to a criminal or disciplinary case of another person, and it does not seem disadvantageous to another person, and regardless of whether or not there is any value or degree of evidence (see, e.g., Supreme Court Decisions 2002Do3600, Jun. 28, 2007; 201Do5329, Nov. 28, 2013).

2) Determination

Comprehensively taking account of the following circumstances acknowledged by each of the above evidence, it is reasonable to deem that the Defendant had materials related to the Defendant’s political intervention in Nowon-gu, which was initially in the Republic of Korea through Nonindicted Party 1.

A) In the lower court’s judgment, Nonindicted 1 stated in the court that the unit members of ○○○○○○ were working only in a virtual space through the Accenture System (a system through which the software called “Accenture Park,” was used) installed in the Eccent North Korea, and upon completion of the work, the said system became more early by the said system, so it did not remain.

B) However, the statement of November 1, 2013, written by Nonindicted 1, 2013, stated that “the person was a person who did not have any PC (PC) while the person’s body was to bring about to North Korea to the unit members, and the individual data should be arranged, so that they did not bring about to North Korea,” and in light of this, it can be seen that no material was stored in the two North Koreas.

C) In addition, if no material remains in the Nowon-gu, such as Nonindicted Party 1’s statement, the Defendant seems to have no reason to initialize the Nowon-gu, even for the purpose of educating civilian employees in the military service.

D) In addition, in the military investigation agency, Nonindicted Party 1 ordered Nonindicted Party 14’s initialization of the Trade Union and Investigation Agency, and instructed the Defendant to make any content related to the operations early into the Republic of Korea because it has long been instructed to do so. The Defendant also instructed the initialization of the Trade Union and Investigation Agency as he stated to the effect that: (a) the business of the Trade Union and Investigation Agency stated to the effect to the effect that it has long been ordered to do so; and (b) the business of the Trade Union and Investigation Agency had all contents and results of the domestic cyber psychology response operations; and (c) if Nonindicted Party 14 did not initialize the Trade Union and Investigation Agency, he could have known all the contents of the domestic operations.

E) Meanwhile, considering the circumstances described in paragraphs (b), (c) and (d) of the above, it is doubtful whether, within the Defendant’s military unit, it is a fact that the data should be created to be initialized after the completion of work by the Accenture System (a somewhat doubtful whether it is possible to make such a creation on the individual on the face of each party’s own house through a program called “Accenture Park”), it is not impossible to restore the initial data unless the Accenture Program itself is deleted.

F) Even if there was no particular material in part of the Housework North Korea, the Defendant ordered Nonindicted 1 to initialize, in light of the fact that, “The important thing in operational security is not the content of the result of the operation carried out in the Housework, but what IP is the content of the result of the operation carried out in the Housework,” and Nonindicted 1 stated to the effect that it should not be confirmed that the initial use of the House work should not have been confirmed when it was made in the court below, it cannot be said that such an act does not have any relation to confirming the existence of the State’s penal authority over the instant case (the same applies to Nonindicted 2’s change of IP).

G) The Defendant, immediately after the Minister of National Defense directed the investigation for confirming the suspicion of political intervention of the Armed Forces headquarters, ordered Nonindicted 1 to take early early measures against North Korea by first giving priority to the head of the team level and the staff members of the Trade Association, who kept many data on cyber activities among the members of the ○○ Group, and Nonindicted 14, inasmuch as he/she is aware that the search and seizure of the equipment, etc. of the members of the ○○○ Group’s units was imminent.

B. Whether Nonindicted 1 and Nonindicted 2 may destroy evidence regarding their own crimes

1) Relevant legal principles

The crime of destroying evidence is established when the evidence in a criminal or disciplinary case of another person is destroyed. In a case where the defendant himself/herself destroys the material that would be evidence for the remaining one's own interest by preventing him/her from being subject to criminal or disciplinary punishment, even if such act would result in the destruction of evidence in another accomplice's criminal or disciplinary case at the same time (see, e.g., Supreme Court Decision 94Do2608, Sept. 29, 195). Meanwhile, in the crime of destroying evidence, the criminal or disciplinary case of another person includes even if the act of destroying evidence is likely to be a criminal or disciplinary case even before the commencement of investigation or disciplinary procedure at the time of the act of destroying evidence (see, e.g., Supreme Court Decision 95Do134, Mar. 28, 1995).

2) Determination

As seen earlier, in addition to the fact that Nonindicted 1 and Nonindicted 2 cannot be deemed to have a criminal liability due to a public offering on the comments posted by other unit members of the ○○○○○○○○○○○○ Group, as seen earlier, Nonindicted 1 and Nonindicted 2 do not perform operations except for common operations because they belong to the system protection team of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○. In addition, in light of the legal principles as seen earlier, there was no need to directly destroy evidence that they could not be subject to criminal punishment or evidence.

(c) the existence of the crime of destruction of evidence;

Comprehensively taking account of the various circumstances described in paragraph (2) of the above and the following circumstances acknowledged by the evidence revealed above, it can be recognized that there was a criminal intent to destroy evidence at the time when the Defendant instructed Nonindicted 1 and Nonindicted 2 to make the initialization, etc. of the devices, such as Nopt North Korea, etc.

1) On October 20, 2013, the Defendant sent a text message to 13 persons, including Nonindicted 26, Nonindicted 26, and Nonindicted 27, on the 1st registry, who received the said text message, and the unit members who received the said text message were also sent to the other unit members.

2) Even though the Defendant had been well aware of the detailed and technical parts of the equipment, etc. operated by the ○○○ System Team, the Defendant knew of what equipment is being used, and ordered the initialization by classifying the equipment into Nowon-do and storage media in order.

3) After Nonindicted 14 was investigated on October 24, 2013 by Nonindicted 14, Nonindicted 14 received an investigation, and then Nonindicted 1 said Nonindicted 1 said Nonindicted 1 to mean that he would not initialize the North Korean territory. In that context, Nonindicted 1 sent the content to the Defendant, and Nonindicted 1 reported the said content to the Defendant, and Nonindicted 1 would have caused misunderstanding on the initial date and misunderstanding. Nevertheless, the Defendant instructed the Defendant to continue the initialization of the North Korean territory without disregarding it.

4) In the military prosecutor’s office, Nonindicted 28 stated that Nonindicted 28 instructed the Defendant to delete all production videos, etc. from the third unit unit members of the military prosecutor’s office, Nonindicted 28 stated to the effect that “I am dead if I am out of her place,” while maintaining Nonindicted 28’s order to delete images, etc., the Defendant 28 stated to the effect that “I am out of her country.”

5) After the commencement of the investigation into the instant case in the court of the court below, Nonindicted 29 stated that “○○○○○ Group deleted all materials that could have been misunderstood as having participated in the politics” from the Defendant.

6) Meanwhile, in light of the circumstances such as the fact that Nonindicted 1 initially recommended the initialization of the Not North Korea for the education of new civilian employees in the military service, the initialization of the Not North Korea was suspended, and that the initialization of the Not North Korea was prompt at the time of the commencement of the investigation into the instant case, the education of civilian employees in the military service at the time of the initialization remains one month, and that there were no circumstances that the initialization of Not North Korea in the course of education of new civilian employees in the military service in the past, it is difficult to deem that Nonindicted 1’s initialization of Not North Korea was inevitable for the education of civilian employees in the military service.

7) Defendant also stated to the effect that “the situation at the time of seizure by the Investigation Headquarters was verified, and the head of the investigation headquarters instructed deletion to prevent any further exposure” regarding the reasons for the initial direction on Nowon-do and network mileage.

8) In addition, it is difficult to view that a military investigation agency’s investigation of data of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was not prior to the instant case where the equipment was initialized within a short time without any backup, and the equipment was initialized in such a way as to make it impossible to restore stored data. While the existing IP change was made in the past office transfer, there was no such circumstance at

D. Whether the act was legitimate

In addition to the following circumstances acknowledged by the evidence revealed earlier, in light of the legal doctrine that the illegality of the Defendant cannot be avoided solely on the ground that the Defendant did not have a duty to obey an illegal or unlawful order of his superior and did not comply with such an order (see, e.g., Supreme Court en banc Decision 96Do3376, Apr. 17, 1997; Supreme Court Decision 201Do5329, Nov. 28, 2013). In light of the foregoing, it is difficult to deem that the Defendant ordered Nonindicted 1 and Nonindicted 2 to initialize equipment and change intellectual property by an order of his superior, or to constitute justifiable act that does not violate social rules.

1) At the time, Nonindicted 4, who had been a cyber commander, instructed the Military Prosecutors’ Office to conduct operational security prior to October 28, 2013, or instructed to change the initialization and IP, such as Nowon-gu, etc., and stated to the effect that the said measures were reported after November 2013.

2) Rather, on October 16, 2013, Nonindicted 4 took measures against the Defendant to refrain from eliminating all activities on the Internet, such as SNS and tables, etc., of the unit members of the Cyber Headquarters, on the basis of official instructions given to the Defendant. Furthermore, Nonindicted 4 stated in the Military Prosecutor’s Office that Nonindicted 4 instructed the Defendant to “I will not destroy evidence.”

3) The established rules on the operations and crisis measures of May 13, 2010 shall not be deemed valid since the signature of the Commander was forged by Nonindicted 30 at the time, and shall not be deemed valid. The substitution of the established rules on the operations of July 31, 2013, prepared by Nonindicted 30 in accordance with the Defendant’s supplementary order, was subject to the approval of the commander on November 8, 2013, and is not an established rules that were in force at the time of the Defendant’s initialization, etc.

4) Meanwhile, it is difficult to view that a military investigative agency’s internal investigation of ○○○○○ group’s data contravenes the operational security.

For a long time, the Defendant published a systematic political opinion through the ○○○○○○○○○○○○○○○○○○○○ Group, even though actively announcing the opinions of the National Assembly members’ election and presidential election, and pretended to be an opinion of the general public, thereby unfairly interfering in and distorted the formation of the citizens’ political will. At the same time, the Defendant infringed on the opportunity for free competition given to political parties and electors to ensure the rational political choice of the people, and damaged the fundamental spirit of representative democracy. Meanwhile, the political neutrality of the military is one of the main values to be achieved by the Constitution as a product of our traditional historical background. Although the Defendant was fully aware of it as the head of the ○○○○○○○○○○○○○○○○ Group, the Defendant, either directly or through the direction on the members of the ○○○○○○○○ Group, neglected the above constitutional value, and believed to have been able to prevent the Defendant from taking advantage of the expectation and sound development of the Defendant’s chest.

However, the sentence like the order shall be determined by comprehensively taking into account the following factors: (a) the Defendant was a first offender and served in the military for not less than 30 years; (b) the Defendant’s age, health status, family relationship; (c) the background leading to the instant crime; and (d) the process of the instant investigation and trial; and (c) the various sentencing conditions specified in the records and arguments.

1. Summary of the facts charged

The Defendant conspiredd with 121 members of the ○○○○○ Group in the manner described in paragraph (1) of the facts constituting the crime indicated in the lower judgment, and published a political opinion in collusion with 1,853 times from November 3, 201 to October 15, 2013, as indicated in attached Table (1), on 11,853 occasions, and from November 18, 201 to October 6, 2013, on 470 occasions, as listed in attached Table (2) of the Crimes List of Crimes.

2. Determination

In principle, individual acts constituting a single comprehensive crime shall meet the requirements for each crime (see Supreme Court Decision 2013Do15113, Dec. 23, 2015). Meanwhile, if it is difficult to recognize that ○○○○ unit unit upon the Defendant’s instruction had a criminal intent to publish political opinions at the time of posting each letter, the part of the act shall not be punished on the ground that the Defendant conspireds with the posted person.

In this part of the facts charged, among those indicated as "short" in the table of crimes in the annexed sheet (1) and (2) of the annexed sheet of crimes cannot be seen as "short" or it is impossible to confirm whether the bulletin is a military unit member of the annexed sheet of the defendant's instruction (which means that the author has a disturbance). The remainder is ① in a case where the description itself does not sufficiently understand the specific meaning or contents of the statement, ② in a case where there is no serious opinion among them or where the contents cannot be grasped as a public official in question (which includes the above cases as to the activities of the President as a public official, including the above cases as a public official in question), ③ in a case where it is difficult to view it as a political person or a political party's support or opposition, or where it is difficult to recognize it as a direct act of a military official in collusion with the above contents of the crime, and thus, it does not constitute a lack of political neutrality or a lack of sufficient political evidence to recognize it as an act of a military official in question (which does not directly affect the political impartiality or security).

In addition, as seen earlier, it is recognized that the defendant conspireds with 120 reporters of each letter indicated as "recognition" among the "recognition" of the annexed list of crimes (1). However, there is no evidence to acknowledge that the defendant conspireds with 121 members of the ○○○ Group's unit.

Ultimately, among these facts charged, the aforementioned parts of the charges should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because they fall under a case where there is no proof of crime. However, as long as the remaining part of the charges charged for a single comprehensive crime is found guilty, the sentence of innocence shall not be

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

Judges Lee Sung-ju (Presiding Judge) (Presiding Judge)