[1] The concept of national secret and its judgment criteria under the National Security Act

[2] Whether a foreigner's entry into North Korea through North Korea under North Korea's order constitutes a crime of escape under Article 6 (2) of the National Security Act (affirmative)

[3] In a case where both parties have filed an appeal against the judgment of the court below which acquitted some of the concurrent crimes under the former part of Article 37 of the Criminal Code, but the Defendant’s appeal is without merit and only the prosecutor’s appeal against the acquittal portion is with merit, whether the guilty portion should be reversed (affirmative

[1] In interpreting the secret under Article 4 (1) 2 (b) of the National Security Act, the secret is all facts, goods, or knowledge which are benefits of the Republic of Korea that the secret is not confidential or confirmed against anti-government organizations with respect to each aspect of politics, economy, society, culture, etc., and they should not belong to the facts, goods, or knowledge widely known to the general public through lawful procedures, etc. in Korea. Further, if the contents are leaked, it shall have a real value to protect the secret as it threatens to cause danger to the safety of the State. However, since Article 4 (Purpose of Article 4) of the National Security Act is a provision punishing a member of an anti-government organization or a person who is ordered to do so, the issue of whether the secret is publicly notified shall be determined in light of various circumstances, such as the degree of development of mass media or means of communication such as newspapers, broadcasting, etc., the scope of readers and listening, and the subject of publication, etc., if it is judged that there is no need to detect, collect, or verify it.

[2] [Majority Opinion] An act of escape under Article 6 (1) and (2) of the National Security Act refers to an act of a foreigner's entry into the territory of the Republic of Korea under the control of an anti-government organization, unless there are special circumstances, to the extent that the defendant actually enters the territory of the Republic of Korea, or enters the area under the control of an anti-government organization. However, three types of acts such as an act of entering the territory of the Republic of Korea directly from the area in which the sovereignty of the Republic of Korea is actually exercised, and an act of escape under Article 6 (1) of the National Security Act enters the territory of the Republic of Korea, not from the territory of the Republic of Korea to the territory of the Republic of Korea, shall be punished for all the above three acts of a foreigner's entry into the territory of the Republic of Korea beyond the territory of the Republic of Korea. However, if the defendant enters the territory of the Republic of Korea beyond the territory of the Republic of Korea beyond the territory of the Republic of Korea as an act of self-government organization of the Republic of Korea beyond the territory of Korea.

[Supplementary opinion is that if a Korean citizen is not aware of the concept of escape under Article 6 of the National Security Act and such concept of "an act of escape" or "an act of escape under Article 6 of the National Security Act, it cannot be viewed as an act of escape under Article 6 (1) of the former National Security Act which goes beyond the control of an anti-government organization." The majority opinion states that "an act of escape under Article 6 of the same Act which goes beyond the control of an anti-government organization can be viewed as an act of an anti-government organization," but it cannot be viewed as an act of escape under Article 6 (1) of the former National Security Act if it goes beyond the control of an anti-government organization, because it is not an act of an anti-government organization, or if it goes beyond the control of an anti-government organization, it cannot be viewed as an act of escape under the control of an anti-government organization." But the majority opinion states that "an act of escape under Article 6 (1) of the former National Security Act is not an act of an anti-government organization."

[Dissenting Opinion] Generally, since "escape" means that a foreigner goes out of a certain area and enters another area as a matter of course. However, Article 6 (1) of the National Security Act does not explicitly stipulate whether he/she goes out of a certain area under the control of an anti-government organization. However, in light of the legislative purport of the National Security Act and the legislative purport of the above provision, it is naturally premised that it does not go out from an area where the sovereignty of the Republic of Korea is actually exercised. Thus, "ese" under the above provision of paragraph (1) means that any foreigner enters into an area under the control of an anti-government organization" from an area where the sovereignty of the Republic of Korea is actually exercised, and it does not mean that the above provision of paragraph (2) of the National Security Act is interpreted as a "the person who has escaped from an area under the control of an anti-government organization." However, it does not mean that there is no clear interpretation of the Supreme Court's precedent as to the meaning of "the right to escape from an area under the control of an anti-government organization."

[3] As to the guilty portion of the judgment of the court below, in a case where the prosecutor appealeds the guilty portion, but the defendant's appeal is without merit and the prosecutor's appeal is with merit, the crime that the court below found the defendant guilty and the not guilty guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the part of the judgment of the court below

[1] Article 4 (1) 2 (b) of the National Security Act / [2] Article 6 (2) of the National Security Act / [3] Article 391 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 97Do985 delivered on July 16, 1997 (Gong1997Ha, 243), Supreme Court Decision 97Do1295 delivered on July 25, 1997 (Gong1997Ha, 2768), Supreme Court Decision 97Do1656 delivered on September 9, 197 (Gong1997Ha, 3211 delivered on November 28, 196), Supreme Court Decision 67Do1140 delivered on September 29, 197 (Gong15-3, 50 delivered on August 16, 197), Supreme Court Decision 74Do1668 delivered on August 30, 197 (Gong1974, 80) (Gong979, 197) and Supreme Court Decision 98Do3968 delivered on May 16, 197)

Defendant

Defendant and Prosecutor

Attorney Hwang-soo et al. and one other

Seoul High Court Decision 97No629 delivered on July 22, 1997

Of the conviction and acquittal portion of the judgment below, the part of the violation of the National Security Act, which escaped from the anti-government organization as of May 13, 1995 and September 14, 1996, is reversed, and this part of the case is remanded to the Seoul High Court. The prosecutor's remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal No. 2, and Defendant’s first ground of appeal

원심판결 이유에 의하면 원심은, 그 내세운 증거들을 종합하여, 피고인은 캐나다에서 반한신문인 민중신문사에서 잡부 겸 광고수집업무를 담당하고 있다가 국방부 산하 국군정보사령부 소속 남산분실에 근무하면서 해외친북단체 관련 첩보수집업무를 담당하고 있던 공소외 공소외 1 중령과 1988. 4.경 공소외 공소외 2의 소개로 만나 위 공소외 1에게 민중신문사기자라고 칭하면서 접근하여 공소외 1과 알게 된 사실, 피고인은 공소외 1으로부터 캐나다에 있는 친북인사인 공소외 공소외 3과 그의 주변인물의 동향을 파악해달라는 부탁을 받고 이를 승낙한 후 정기적이고 공식적인 활동비를 지급받거나 정식 연락체계를 구축하고 상사의 지시에 따라 움직이는 정보원이 아닌 필요한 경우 협조적인 차원에서 정보를 제공하여 주는 협조원으로서 위 공소외 3과 관계된 동향을 전화나 편지 등을 통해 수차례 보내주고, 그 밖에 북한 홍보용 비디오테이프, 뉴코리아타임즈신문 등을 보내주었으며, 피고인이 1991. 8. 9. 국내에서 입국하자 공소외 1이 그 동안의 협조에 대한 답례로 캐나다 편도항공운임 상당의 금 680,000원을 준 사실, 피고인은 같은 달 15. 서울을 출발하기 직전 범민련 캐나다 본부 의장인 공소외 3의 지시에 따라 북한으로 들어가면서 북한으로 간다고 일방적으로 공소외 1에게 통보만 한 사실, 이에 공소외 1은 이미 피고인의 방북일정이 짜여져 있었고 피고인의 방북을 막으면 공소외 3이 피고인을 신임하지 않을 우려가 있다고 보고 별다른 제지를 하지 않고 방치한 사실, 그 외 1992. 2.경 피고인이 미국에 가서 북한의 연형묵 총리가 주최하는 미주지역교민연회에 참석한다고 하여 공소외 1이 1,000달러 짜리 외국환수표를 보내 준 사실, 피고인이 1992. 8.경 캐나다 범민련활동을 중단하였다고 하자 공소외 1은 그 동안 피고인으로부터 받은 정보가 특별한 것이 없었고 앞으로도 피고인으로부터 더 이상 필요한 정보를 제공받을 수 없다고 판단하여 피고인과의 협조관계를 단절하기로 하여 사실상 그 때부터 피고인과 더 이상의 협조관계가 유지되지 않고 있다가 1993. 3. 27. 실제로는 북한 해외동포위원회 미주담당 참사 김영수와 재일 조총련 소속 범민련 해외본부 사무차장 박용으로부터 국내 재야단체의 동향파악의 지시를 받고 국내에 들어오는 것이면서도 피고인은 공소외 1에게 피고인의 조카입양문제로 서울을 방문한다고만 통보하고 서울에 입국하였고, 공소외 1은 그 동안의 협조원 관계로 일을 하여 준 데 대한 고마움의 표시로 이틀 분의 호텔비를 지급해 주고, 같은 해 4. 7. 공식적으로 협조원 관계를 종료하면서 금 400,000원을 지급한 사실, 피고인은 같은 날 캐나다로 돌아간 후 1993. 6. 10.경 캐나다 국적을 취득하고, 곧이어 공소외 공소외 4 등을 통해 국내 정세 및 재야운동권동향 등을 파악하기 위하여 두 차례에 걸쳐 국내에 입국하였으며 또 두 차례에 걸쳐 북한으로 가 피고인이 파악한 내용을 전달하고, 사상학습을 받거나 연락체계 및 음어가 기재된 메모용지와 여비를 받았으며, 팩스 등을 통해 북한과 연락을 취하는 등의 행위를 한 사실, 피고인은 위와 같이 1988. 4.부터 1993. 4.까지 협조원 관계로 있으면서 4회에 걸쳐 공소외 1과 접촉하고, 위와 같은 협조원 관계로 있는 동안에도 공소외 1과는 관계없이 독자적으로 국내 재야단체를 방문하여 그 동향을 수집하거나 공소외 공소외 5으로부터 국내 정세 및 국내 재야단체의 동향을 편지 등을 통해 수집하여 이를 북한에 전달하면서도 일체 공소외 1에게 알리지 않거나 국내 재야단체를 방문한 사실이 있다는 정도만 알려준 사실을 인정한 다음, 위 인정 사실에 비추어 보면 피고인은 공소외 1과 협조원 관계를 유지하면서 공소외 1이 요구하는 공소외 3 등의 동향을 파악하여 일부 정보를 제공하는 한편, 공소외 1과는 관계없이 독자적으로 각종 친북활동을 전개하여 오다가 1993. 4. 공식적으로 협조원 관계를 단절하고서도 자신이 그 동안 하여 왔던 친북활동을 계속하여 하여 온 것임을 알 수 있어 비록 피고인이 일부 대한민국의 이익을 위해 활동한 부분이 있다고 하더라도 제1심 판시 범죄사실과 같이 대한민국에 잠입하거나 북한에 들어가 반국가단체의 구성원과 회합하고, 국가기밀을 탐지, 수집, 전달한 행위는 국가의 존립, 안전이나 자유민주적 기본질서를 위태롭게 한다는 정을 알면서 반국가단체인 북한으로 탈출하고, 반국가단체의 구성원과 회합, 통신, 연락한 것이며, 또한 반국가단체의 구성원으로부터 지령을 받고 국내에 잠입한 것이라고 봄이 상당하다고 판단하였다.

In light of the records, the fact-finding and judgment of the court below are just, and there is no error of law which misleads the remainder of the facts against the rules of evidence or misunderstanding the legal principles as to the transfer purpose under the National Security Act, as pointed out in the grounds of appeal.

In addition, in light of the fact that the defendant, while maintaining the relationship with the non-indicted 1 as above and providing some information by ascertaining the trends of the non-indicted 3, etc. as demanded by the non-indicted 1, and that the defendant independently committed the above violation of the National Security Act regardless of the non-indicted 1, it cannot be deemed that there is any justifiable reason in misconception that each of the above acts did not violate the National Security Act. Therefore, it cannot be deemed that the defendant's each of the above acts constitutes an error

In addition, in light of the records, the court below's decision that collected the amount of USD 4,400 which the defendant received from a member of an anti-government organization on September 21, 1996 from US$ 08,00 (No. 4), and the remaining US$ 100 which has been consumed voluntarily is just, and there is no error of law by misunderstanding facts or by misunderstanding the legal principles of confiscation or collection, as argued in the Grounds for Appeal.

The ground of appeal on this point is without merit.

2. As to Defendant’s ground of appeal No. 1

The allegation in the grounds of appeal that the sentence of the court below is too harsh shall not be a legitimate ground of appeal in the case of this case where imprisonment for less than 10 years is sentenced.

3. As to the ground of appeal No. 2 by the defense counsel, and the ground of appeal by the prosecutor, No. 1 (the detection, collection, and delivery of national secrets)

In interpreting confidential information under Article 4 (1) 2 (b) of the National Security Act, the confidential information is all facts, goods, or knowledge which are beneficial to the Republic of Korea as to each anti-government organization, such as politics, economy, society, culture, etc., and they should not belong to the fact, goods, or knowledge widely known to the general public through lawful procedures, etc. in Korea. In addition, if the contents are leaked, it shall have substantial value to protect the secret as it may cause danger to the national safety. However, since Article 4 (Performance of the National Security Act) of the National Security Act punishs an act of performance of the purpose of a member of an anti-government organization or a person who is ordered to do so, it shall be determined as to whether it is known or not, in light of various circumstances such as the degree of development of mass media or means of communication such as newspapers, broadcasting, etc., the scope of reading and listening, and the subject of publication, etc. Where it is deemed unnecessary to detect, collect, verify, or verify it, it shall be determined as to whether there is any substantial danger and risk of leakage of anti-government organization 97.

In the same purport, the court below determined that the defendant violated the National Security Act concerning the detection, collection, and delivery of the State secrets against the defendant as set forth in No. 1-Ra (3), No. 1-6 (1), (2), (4), and No. 2-B as stated in the judgment of the court of first instance. The defendant's aforementioned non-indicted 5, through Non-indicted 5, cannot be viewed as constituting the "Korean daily newspaper, including East Asia, or the office of the Republic of Korea," and the defendant's specific information as to the National Security Act (as such, the defendant's assertion that the above non-indicted 5 did not constitute the "Korean National Security Act" and that there was no violation of the National Security Act No. 1 as stated in the judgment of the court below, since it was found that there was no violation of the National Security Act No. 1 as to the national security law's position, the result of the 14th National Assembly election, the merger of the President candidates, the fact that the defendant did not have any knowledge or knowledge of the national secrets.

4. As to the prosecutor's ground of appeal No. 2 (the point of escape)

A. According to the reasoning of the judgment of the court below, with respect to escape under Article 3-A and Article 4-B of the judgment of the court of first instance, the court below acknowledged the fact that the defendant acquired Canadian nationality on June 10, 1993 (the court below's June 10, 1996 seems to be erroneous) and entered North Korea under the control of an anti-government organization on May 13, 1995 and September 14, 1996 in order to receive an order from an anti-government organization, or to consult on the accomplishment of purpose after receiving an order from an anti-government organization, and determined that the crime other than those listed in Article 5 of the Criminal Act cannot be applied to a foreigner's overseas crime, and the National Security Act itself does not include any grounds for application of the National Security Act to a foreigner's overseas crime under the National Security Act or other Acts, and thus, the court of first instance cannot apply the legal principles concerning the foreigner's escape outside the territory of the Republic of Korea.

B. The court below held that each of the above acts of the defendant constitutes a foreigner's overseas crime, on the premise that each of the above acts constitutes "escape under Article 6 (2) of the National Security Act", and first, it is about whether each of the above acts of the defendant constitutes "escape under Article 6 (2) of the same Act."

Article 6 (1) of the National Security Act provides that "any person who has escaped from, or escaped from, an area under the control of an anti-government organization with the knowledge of fact that it may endanger the existence and security of the State or democratic fundamental order shall be punished by imprisonment for not more than ten years." Paragraph (2) of the same Article provides that "any person who has escaped from, or escaped from, an area under the control of an anti-government organization or its members shall be punished by death, imprisonment for life, or imprisonment for not less than five years," and "any person who has escaped from, or escaped from, an area under the control of an anti-government organization or its members shall be punished by imprisonment with prison labor, or imprisonment with prison labor, for not less than five years." "escape" under each provision of the same Article means any person who, barring any special circumstance, exceeds the territory of the Republic of Korea from the area in which the sovereignty of the Republic of Korea is actually exercised (see Supreme Court Decisions 87Do1341, Sep. 8, 198; 90Do3139.

However, the act of entering the area under the control of the above anti-government organization can be punished by three types of acts, such as entering the area under the control of the Republic of Korea directly from the area under the control of the above anti-government organization, entering the area under the control of the third country through the third country, and entering the third country. In the case of escape under Article 6 (1) of the National Security Act, only the act of entering the area under the control of the anti-government organization shall be punished by the above three types of acts. However, in the case of escape under Article 6 (2), the above three types of acts shall be punished by the act of escape from the area under the control of the anti-government organization. However, in addition, in the case of escape under Article 6 (2), the act of escape from the area under the control of the Republic of Korea directly from the area where the sovereignty of the Republic of Korea is practically exercised, and the act of entering the third country through the third country is exempted from the area where the sovereignty of the Republic of Korea is actually exercised, and therefore, the act of escape into the third country shall be punished by entering.

On the other hand, in criminal law, it does not vary as the subject of an act, except for the case of a person who is an alien, so long as the subject of an act is not restricted to a national, even if he/she is a foreigner, he/she is an act deviating from an area in which the sovereignty of the Republic of Korea is practically exercised and residing in a third country and entering into an area under the control of an anti-government organization, and all of the acts of escape under the above provision constitute an act of escape, regardless of whether he/she is a foreigner's overseas crime.

However, according to the records, the summary of the facts charged as to the escape of 3-A in the judgment of the court of first instance begins on May 9, 1995 with the territory of Canada to obtain North order and entered North Korea on May 13, 1995 through Japan and China. The summary of the facts charged as to the escape of 4-B in the judgment of the court of first instance is that the defendant with the nationality of Canada went into North Korea on September 13, 1995 and went into Korea on May 13, 1995. The summary of the facts charged as to the escape of 4-B in the judgment of the court of first instance is that the defendant with the citizenship of Canada went into Korea on September 10:35, 196 for the fulfillment of its purpose while he went into Korea on September 13, 1996 and went into China around China, and then the defendant's act constitutes an escape under Article 6-2 (2) of the National Security Act.

Therefore, it is reasonable for the court below to assume that each of the above acts of the defendant constitutes "escape" under Article 6 (2) of the National Security Act.

However, Article 3 of the Constitution stipulates that the territory of the Republic of Korea shall be the Korean Peninsula and its accessory islands, and it is clear that North Korea also belongs to the territory of the Republic of Korea (Supreme Court Decision 4290Du228 delivered on September 20, 1957), and that the escape of the defendant 3 was conducted across the territory of the Republic of Korea and the territory of the Republic of Korea, and that the escape of the above 4-B was conducted across the territory of the Republic of Korea and over the territory of the Republic of Korea and over the third countries beyond the sovereignty of the Republic of Korea. In this case, even though the defendant is a foreigner with the nationality of Canada, the penal provisions of the Republic of Korea shall be applied in accordance with Articles 2 and 4 of the Criminal Act, and it shall not be dealt with as a matter of foreigner's overseas crime as provided in Articles 5 and 6 of the Criminal Act.

Therefore, the court below did not err by misapprehending the legal principles on the crime of escape under Article 6 (2) of the National Security Act or the foreign crime committed by foreigners. The precedents cited by the court below are related to the former anti-public law, which already been abolished, and thus it is not appropriate to invoke the case in this case.

The prosecutor's ground of appeal pointing this out is with merit.

5. Thus, among the non-guilty part of the judgment of the court below, the non-guilty part of the above 3-A escape and the escape of 4-B, that is, that is, the violation of the National Security Act that escaped from the area of anti-government organization as of May 13, 1995 and September 14, 1996, cannot be reversed, and the defendant's appeal as to the guilty part is without merit. However, since the crime that the court below found the defendant guilty and the crime that found the non-guilty verdict as seen above are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment of the court below should be reversed together with the aforementioned non-guilty part (see Supreme Court Decisions 84Do2639, Sep. 8, 1987; 87Do2133, Jan. 31, 198; 87Do9697, Oct. 10, 1969; 96Do369796, Jun. 16, 197

6. Therefore, the guilty part of the judgment below and the non-guilty part of the non-guilty part are reversed, and this part of the case is remanded to the court below, and the prosecutor's remaining appeal is dismissed. As to the judgment on the part above 4, there are the following supplementary opinions as to the majority opinion of Justice Jeong-young and Kim Jong-dae, and the dissenting opinion as to the final judgment on the part above 4, and the dissenting opinion by Justice Jeong-ho, Justice Cho Jong-sung, Justice Cho Chang-sung, Justice Cho Chang-sung, and Justice Lee Yong-hun-hun-hun as follows.

7. Concurrence with the Majority Opinion by Justice Choi Young-young and Justice Kim Jong-soo

A. First of all, the majority opinion argues that the previous opinion of the Supreme Court on the concept of "escape" under Article 6 of the National Security Act is not sufficient enough to change the situation at the present time without any change in situation, and that it is only to maintain it.

(1) The Supreme Court held that the crime of escape under Article 6 (1) of the former National Security Act (amended by Act No. 4373 of May 31, 1991; hereinafter the same shall apply) is established not only in the case of escape from the area in which the sovereignty of the Republic of Korea is actually exercised to the area under the control of an anti-government organization, but also in the case of escape from the area in which the sovereignty of the Republic of Korea is actually exercised to the area under the control of an anti-government organization, through the third country or residing in a third country and escape to the area under the control of an anti-government organization."

Since the Supreme Court inserted the phrase "not less than a citizen of the Republic of Korea" in the above judgment, etc., it is not likely that the act cannot be seen as an "escape" under Article 6 of the National Security Act if the person who escaped to an area under the control of an anti-government organization is a foreigner. However, in light of the Supreme Court's precedents on Article 6 (1) of the former Anti-Public Law (amended by Act No. 3318 of Dec. 31, 1980, Article 2 of the Addenda to the National Security Act amended by Act No. 3318 of Dec. 31, 1980; hereinafter the same shall apply), it does not require that a national be aware of whether he is a domestic crime or a foreign crime in the case of a foreigner, and it does not constitute the above "ese" in the case of a foreigner. The reasons are as follows.

Article 6 of the former Anti-Corruption Act provides for the crime of escape and escape, and Paragraph (1) provides that "any person who escaped from an area under the control of an anti-government organization shall be punished by imprisonment for not more than ten years," and Paragraph (2) thereof provides that "Any person who has escaped from an area under the control of an anti-government organization fails to immediately surrenders to the investigative agency shall be punished by imprisonment for a definite term of not less than five years," and Paragraph (3) thereof provides that "any person who commits an offense under paragraph (1) above by the order of an anti-government organization or a member thereof shall be punished by imprisonment for life or imprisonment for not less than five years," and Paragraph (4) thereof provides that "any person who escaped from an area under the control of an anti-government organization or a member thereof to receive an order of an anti-government organization or a member thereof shall be punished by

However, with respect to the act of entering into an area under the control of an anti-government organization in a third country, not an area under the control of an anti-government organization, the Supreme Court held that "the person who escaped to an area under the control of an anti-government organization as provided in Article 6 of the Anti-government organization" refers to both the person who directly enters an area under the control of an anti-government organization as well as the person who enters an area under the control of an anti-government organization as well as the person who enters an area under the control of an anti-government organization, or who resides in a third country and enters an area under the control of an anti-government organization, and the court below does not err in the application of Article 6 of the anti-government organization to the defendants." (see Supreme Court Decision 67Do140, Nov. 28, 1967; Supreme Court Decision 67Do140, Nov. 28, 1967; Supreme Court Decision 700Da1680, Nov. 6, 197).

After all, Article 6 (1) through (4) of the former anti-public law was abolished on December 31, 1980, while Article 6 (1) through (4) of the former anti-public law was amended as the former anti-public law was specialized, and the contents of the provision form and statutory punishment were almost modified under Article 6 (1) and (2) of the former National Security Act. Accordingly, the Supreme Court defined the concept of "ese" for the Korean national residing in the United States and escaped to North Korea, and the concept of "ese" for the case of violation of the National Security Act, which entered into the area under the control of anti-government organization under Article 6 (1) of the former anti-public law, just like the Supreme Court's precedent on Article 6 (1) of the former anti-public law, there is no possibility of causing any problem about a foreigner's foreign crime in the case of a Korean national, and therefore, it is not necessary to add whether a foreign criminal is a domestic criminal.

Meanwhile, Article 6(1) of the former National Security Act (amended by Act No. 4373, May 31, 1991; hereinafter referred to as "the knowledge that it would endanger the existence and security of the nation or democratic fundamental order") was inserted in the preceding sentence of the former Act, and thus, the subjective constituent elements of the National Security Act are more strict and strictly defined. Therefore, in relation to the concept of escape under Article 6(1) of the current National Security Act, Article 6(1) of the former National Security Act and Article 6(1) of the former Anti-Public Law (amended by Act No. 4373, May 31, 1991, the concept of escape under Article 6(1) of the former National Security Act should be interpreted differently from that of Article 6(1) of the former National Security Act and Article 6(1) of the former Anti-Public Law. However, as long as the entry into an area under the control of an anti-government organization is an overseas crime, it is not necessary only because it defined the concept of escape.

As such, it is clear that the Supreme Court inserted the phrase "at least a national of the Republic of Korea" in defining the concept of "escape" under Article 6 (1) of the National Security Act does not constitute "escape" if a foreigner enters a third country or enters an area under the control of an anti-government organization while residing in a third country, not "escape". It is clear that it is not necessary to determine whether a national is a domestic criminal or a foreign criminal in the case of a national.

(2) In addition, the Supreme Court has consistently held that, among "escape under Article 6 (2) of the National Security Act, an act deviating from the area in which the sovereignty of the Republic of Korea is practically exercised, if a person runs away from the area in which the sovereignty of the Republic of Korea is actually exercised, for the reason that it does not constitute the elements of escape from the former anti-public law to the area in which the sovereignty of the Republic of Korea is actually exercised (see, e.g., Supreme Court Decisions 68Do754, Jul. 30, 1968; 87Do1341, Sept. 8, 1987; 90Do646, Jun. 8, 190; 91Do2495, Dec. 24, 191; 193Do5938, Oct. 13, 195).

(3) As seen above, the majority opinion maintains the previous opinion of the Supreme Court on the concept of "escape" under Article 6 of the National Security Act, but the act of entering an area under the control of an anti-government organization in a third country is deemed to be a domestic crime, unlike the precedents on Article 6 of the former anti-government organization, as an overseas crime.

B. In addition, the majority opinion does not regard it as a violation of the principle of no punishment without the law.

The term "escape" can be said to mean that the term is ordinarily deviating from or going out of custody or any other bad condition. However, the concept of "escape" under Article 6 of the National Security Act cannot be understood as the same meaning as that of the ordinary language, and as stated in the previous Supreme Court precedents or majority opinions, it is necessary to understand that the subject of the law, as stated in the previous Supreme Court precedents or majority opinions, is a person who voluntarily exercises the sovereignty of the Republic of Korea, and enters an area under the control of an anti-government organization.

If the concept of escape above is understood as it is in the meaning of ordinary language as mentioned above, it should be viewed that escape under the above law is only an act deviating from the area in which the sovereignty of the Republic of Korea is practically exercised. The Dissenting Opinion argues that, while understanding the concept of escape above, in the case of a national, even though he resides in a third country, it can be viewed that abstract governing power of the Republic of Korea exists even if he resides in the third country, and the necessity of punishment is sufficient, the act that a national resides in the third country and enters the area under the control of an anti-government organization should be viewed as included in the concept of escape exceptionally.

However, if the Korean national resides in a third country, it cannot be said that it enters into an area under the control of an anti-government organization and goes beyond the abstract control. Therefore, it cannot be said that it constitutes an escape in the case of a Korean citizen and it does not constitute an escape in the case of a foreigner. Although it is difficult to say that the abstract control of the Korean citizen as stated in the Dissenting Opinion is specifically defined, if it means the so-called personal jurisdiction, it is merely an issue of the Korean citizen's domestic or foreign criminal intent, or it is not a relation with the concept of escape.

In addition, for example, in cases where a third party residing in the territory of the Republic of Korea, which is an anti-government organization, and returned to the third country after receiving an order from North Korea, which is an anti-government organization, and communicated it to a counter-espionage located in Seoul in the Republic of Korea through communications, according to the Dissenting Opinion, if he/she is a national, he/she may be punished pursuant to Articles 6(2) and 8 of the National Security Act. However, if he/she is a foreigner, his/her entry into North Korea shall not be punished because he/she does not correspond to the above "escape", and the act of contact with a counter-espionage by communications cannot be punished as a foreigner's overseas crime (the same applies even if according to the Majority Opinion in cases of communications). In such cases, there is no need to punish him/her differently from the national even if the main body is a foreigner and is a domestic crime.

In short, the Dissenting Opinion argues that the concept of "escape" under Article 6 of the National Security Act is unfair, regardless of the legislative intent or relationship with the law, if a foreigner, who is bound by ordinary language, enters a third country into an area under the control of an anti-government organization, he/she cannot be the subject of the act under the above Article.

Fundamentally, confusion in interpretation is caused by the use of the term "escape" in Article 6 of the National Security Act as well as the act which enters into the area controlled by anti-government organizations. Thus, the concept of "escape" is also caused by the final interpretation of the law. Thus, the court, which is an institution interpreting the law, has no choice but to interpret the concept of "escape" as mentioned above. From this point of view, the Supreme Court has understood the concept of "escape" from the old anti-public law to the current National Security Act. Thus, it cannot be said that it violates the principle of no punishment without law.

8. Dissenting Opinion by Justice Jeong-ho, Justice Cho Chang-ho, Justice Kim Chang-chul, and Justice Lee Yong-hun

The majority opinion considers that the act of a foreigner's entry into a third country with no governing power of the Republic of Korea constitutes an "escape under Article 6 (2) of the National Security Act" as to the act of escape under Article 6 (2) of the National Security Act, and judged guilty as to the escape part of Article 3-A of the judgment of the court of first instance, but it cannot be approved for the following reasons.

Article 6 (1) of the National Security Act provides that "any person who has escaped from, or escaped to, an area under the control of an anti-government organization with the knowledge of fact that it may endanger the existence and security of the State or democratic fundamental order shall be punished by imprisonment for not more than ten years." Article 6 (2) of the same Act provides that "any person who has escaped from, or escaped to, an area under the control of an anti-government organization shall be punished by death, imprisonment for life, or imprisonment for not less than five years."

In general, the "escape" means the escape from a certain region, and such normal meaning naturally enters another area. However, Article 6 (1) of the National Security Act only stipulates that "the person who escaped from an area under the control of an anti-government organization" is an "person who escaped from a certain area" but does not explicitly stipulate whether he/she deserts from a certain area. However, in light of the legislative purport of the National Security Act and the purport of the text of the above Act, it must be the premise that "the escape from an area under the control of an anti-government organization" is naturally presumed to depart from the area where the sovereignty of the Republic of Korea is actually exercised. Thus, the "escape" under the above Paragraph (1) should be interpreted as "the person who escaped from an area under the control of an anti-government organization from the area where the sovereignty of the Republic of Korea is actually exercised."

On the other hand, Article 6 (2) of the National Security Act only provides that "the person who escaped from ....." and does not explicitly provide that "the person who escaped from ........." and therefore, it can be interpreted that there is a theory in its interpretation, but it should be interpreted that "the person who escaped from .........." and "the person who escaped from ........."" and "the person who enters ..."

The Supreme Court has interpreted the meaning of "escape" under Article 6 (1) and (2) of the National Security Act as follows.

Article 6 of the current National Security Act newly provides that Article 6 of the former National Security Act (amended by Act No. 318 of Dec. 31, 1980) and Article 6 of the former Public Law (amended by Act No. 2 of Addenda No. 3318 of the same Act) overlap with each other, and the statutory penalty has been differently provided, and Article 6 (1) of the former Public Law newly provides that "any person who escaped to an area under the control of an anti-government organization shall be punished by imprisonment for not more than 10 years," Paragraph (2) of the same Article has not been established in Korea as an area under the control of an anti-government organization; and Paragraph (3) of the same Article provides that "any person who has escaped to an area under the control of an anti-government organization shall be punished by imprisonment for not less than five years if he/she fails to surrenders to the investigative agency without delay; and Paragraph (4) of the same Article provides that "any person who commits an offense under the preceding paragraph shall be punished by imprisonment for not less than five years;

After the abolition of the former anti-public law and the enforcement of the current National Security Act, the Supreme Court held that the crime of escape under Article 6 (1) of the National Security Act is established not only in the case of escape from the area in which the sovereignty of the Republic of Korea is practically exercised to an area under the control of an anti-government organization, but also in the case of escape from a third country to a third country, or residing in a third country and escape to an area under the control of an anti-government organization (see Supreme Court Decisions 83Do383, Apr. 18, 1983; 83Do383, Apr. 19, 198), but also in the case of escape from an area outside the control of an anti-government organization. Thus, even in the case of escape to an area not under the control of an anti-government organization, it does not constitute the crime of escape under Article 6 (1) of the former Act (see Supreme Court Decision 87Do1384, Apr. 19, 196). 196

In light of the above view of the Supreme Court precedents, the "escape" under Article 6 (1) of the National Security Act refers to the act of entering into an area under the control of an anti-government organization from the area in which the sovereignty of the Republic of Korea is practically exercised. However, in the case of a citizen of the Republic of Korea, the citizen of the Republic of Korea resides in a third country where the sovereignty of the Republic of Korea does not actually extend to the act of entering an area under the control of an anti-government organization, and the "escape" under Article 6 (2) of the same Act includes the act of entering into an area under the control of an anti-government organization, other than the act referred to in paragraph (1) of the same Article.

Even if a citizen of the Republic of Korea resides in a third country and enters the area under the control of an anti-government organization immediately, it is considered that the escape under Article 6 (1) and (2) of the National Security Act constitutes an escape under the Article 6 (2) of the National Security Act. Thus, in principle, the escape under the Article 6 (1) and (2) of the National Security Act refers to the escape from the area practically under the sovereignty of the Republic of Korea. Thus, the escape is an act of escape from the area practically under the sovereignty of the Republic of Korea, and the act of entering the area under the control of an anti-government organization is not included in the concept of escape anticipated in the above law, but if a citizen of the Republic of Korea enters the area under the control of an anti-government organization, he/she shall be deemed to have the abstract control of the Republic of Korea even if he/she actually resides in the area under the control of an anti-government organization. Since the necessity of punishment is sufficient, it is considered to be included in the concept of escape.

Therefore, the Supreme Court has interpreted that the act of a foreigner, who is not a citizen of the Republic of Korea, entered into the territory of anti-government organizations immediately in a third country with no sovereignty of the Republic of Korea, does not constitute the concept of escape under Article 6 (1) and (2) of the National Security Act from the beginning of the act of entering the territory of anti-government organizations.

As the majority opinion, interpreting that even if a foreigner residing in a third country with no real sovereignty of the Republic of Korea and enters an area under the control of an anti-government organization, it can be punished by the concept of "escape" under Article 6 (2) of the National Security Act can be interpreted as being included in the concept of "escape" under Article 6 (2) of the National Security Act, by disregarding that the above Supreme Court precedents stand on the premise that "not less than a citizen of the Republic of Korea is a citizen of the Republic of Korea" (in particular, according to the majority opinion, in the same case as this case prosecuted for violation of Article 6 of the Anti-Public Law, the order of the court below that acquitted him of the violation of Article 720 of the anti-Public Law is changed) and the previous precedents are inconsistent with the above decisions that held that the elements of this Article are different.

Furthermore, such interpretation not only deviates from the ordinary meaning of the word "escape" that anyone can know if it is a sound common sense, but also does not have any separate provision concerning the meaning of "escape", but also, it cannot be said that the act that a foreigner enters a third country with no governing power of the Republic of Korea constitutes an "escape" under Article 6 (2) of the National Security Act even with respect to an act that a foreigner enters a controlled area of an anti-government organization, which is beyond the ordinary meaning of such "escape" and does not deviate from the limit of statutory interpretation permitted under the principle of no punishment without law.

With respect to this case, the summary of the facts charged of escape of Article 3 of the judgment of the first instance court is that the defendant started the debate of Canada on May 9, 1995 in order to obtain North order and entered North Korea in order through Japan and China, and the defendant is a person with the citizenship of Canada. Thus, the defendant's act cannot be seen as falling under the element of escape of Article 6 (2) of the National Security Act because the defendant's act was entered Korea through Japan and China in Canada where the sovereignty of the Republic of Korea does not affect the Republic of Korea. Thus, without examining whether the crime of escape of this part constitutes a crime of escape of this part, since the defendant's act is not a crime of escape of this part, it is not a crime of escape of this part. The court below's decision that the defendant's act falls under the crime of escape of this part while not a crime of escape of this part constitutes an overseas crime of escape of this part is not proper, but its conclusion should not be justified.

1. The grounds of appeal are with merit. The grounds of appeal are with merit. It is so decided as per Disposition by the assent of all participating Justices on the bench and all participating Justices on the bench.