[1] The case holding that the fact stated in the indictment as a separate paragraph does not violate the principle of non-guilty interest

[2] In a case where a member of an immigration organization discussed in concert with the activities of an anti-government organization, whether the crime of assistance under Article 7 (1) of the National Security Act is established in addition to the crime of forming or joining an anti-government organization (affirmative)

[3] The meaning of "dual purpose" under Article 7 (5) of the National Security Act

[4] The case holding that pro-enemy materials do not constitute "acquisition" in the crime of acquiring pro-enemy materials under the National Security Act

[1] The case holding that since the part of the defendant's participation in the debate on the issue of opening the rice import is not only written as a separate paragraph in the indictment, but also there is no relation with the "act of acting in concert with an anti-government organization due to participation in the mountain training" as stated in the following paragraph, it is reasonable to view that the part of the defendant's participation in the debate on the issue of opening the rice import of rice is not written as a mere transitional fact, but also a separate criminal fact, it cannot be viewed that the court below violated the principle of non-defluence on the ground that the court below made a judgment of "not guilty."

[2] Even if the activity of a dual organization is a dual activity among its members, it cannot be readily determined that there is no possibility of dissemination, and if the debate itself cannot be evaluated as a dual activity, it is difficult to view it as not a dual activity solely for the reason that the debate is a separate issue or a debate among its members. Moreover, if the formation of a dual organization or joining is an immediate crime, and if the crime is committed immediately, it cannot be deemed that the activity thereafter is absorbed. Thus, if a dual organization acts under Article 7 (1) of the National Security Act, such as joining an anti-state activity for the accomplishment of its purpose, the member of the dual organization is in a substantive concurrent relation as a separate crime.

[3] Article 7(5) of the National Security Act provides that the purpose of the act under Paragraph (1), (3), or (4) does not need to be the active intent or final recognition of the act, and it can be satisfied with dolusent recognition. As such, the contents of the expression must be objectively viewed to contain the aptitude of the act, such as acting in concert with North Korea's activities such as public relations and inciting North Korea, which is an anti-government organization, and further, if there is a dolus perception that such an act may become a dual act, the elements of the act shall be satisfied. In addition, if the expression contains such awareness, and if it was objectively recognized as an act such as distributing, selling, acquiring, possessing, etc., it is presumed that the act would have become a dual act, and therefore, if it was not proven that it was caused by academic research, profit-making trends, and anti-government organization, it shall not be deemed that the subjective element of the act is unlawful.

[4] The case holding that, in case where the defendant reported that many people's expressive materials are distributed openly to the public on the playground with which they gather, and either part of them were read and immediately left the place after they were read, such act does not constitute the category of "acquisition in the crime of acquisition of pro-enemy contents"

[1] Articles 246 and 254 of the Criminal Procedure Act / [2] Article 7 (1) of the National Security Act / [3] Article 7 (5) of the National Security Act / [4] Article 7 (5) of the National Security Act

[1] Supreme Court Decision 83Do2897 delivered on February 14, 1984 (Gong1984, 475) / [2] Supreme Court Decision 80Do2570 delivered on December 23, 1980 (Gong1997Ha, 2230 delivered on June 27, 197) / [3] Supreme Court en banc Decision 90Do2033 delivered on March 21, 1992 (Gong192, 1466) (Gong195Do1035 delivered on December 23, 1996) 96Do2606 delivered on June 13, 197 (Gong197Sang, 559) / [3] Supreme Court Decision 97Do1975 delivered on June 13, 1997 (Gong197Do19759 delivered on June 13, 197).

Defendant

Prosecutor

Seoul High Court Decision 95No2800 delivered on May 9, 1996

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

1. As to the activities of anti-government organizations due to the debate on rice import and opening issues

A. Summary of the judgment below

According to the reasoning of the judgment below, since there is no indication in the indictment about the contents of North Korea's arguments or activities related to the establishment of an anti-government organization, and there is no evidence to find the contents of the indictment, and it cannot be said that the contents of the indictment are publicly announced. Thus, even if the defendant's speech that "the issue of opening rice import is not only the issue of farmers, but also the issue of opposition to the National Assembly's ratification, and the direction of the debate should be determined as the temporary power strike, and it cannot be concluded that the defendant acted together with the anti-state activities of North Korea, even if the defendant consented to the above order, it cannot be said that there is no possibility that the above defendant's activities would be punished for the above crimes of anti-government organization, and if there is no possibility that the defendant's activities would be more likely to be punished for the above crimes of anti-government organization than the above acts of anti-government organization, it can be interpreted that there is no possibility that the defendant's activities would be more likely to violate the Constitution's constitution or activities.

B. As to the violation of the principle of non-definite interest

According to the written indictment of this case, the part of the defendant's participation in the debate on "the opening of rice import" is written as a separate clause in the indictment of this case, and there is no relation with "the act of assistance by anti-government organizations due to the participation in the mountain training" as stated in the following paragraph. In light of this, it is reasonable to view that the part of the defendant's participation in the debate on "the opening of rice import and opening of the above" is not just a transitional fact, but also a separate criminal fact. Thus, the court below's judgment of "the innocence" cannot be viewed as a violation of the principle of no accusation as pointed out. There is no reason to discuss.

C. As to the misapprehension of legal principles as to the crime of assistance under the National Security Act

As determined by the court below, it cannot be readily determined that there exists no possibility of spreading activities among internal members of a dual organization, and if such debate itself cannot be evaluated as a dual activity, it cannot be viewed as not a dual activity solely on the ground that it is a separate issue or a debate between members of a dual organization. Moreover, if the formation of a dual organization or joining the dual organization is an immediate crime, it cannot be deemed that the act thereafter is absorption. Thus, if a member of a dual organization engages in a dual act under Article 7 (1) of the National Security Act, such as aiding in anti-state activities to achieve the purpose of the organization, it shall be deemed that there is a substantive concurrent relation as a separate crime (see Supreme Court Decision 80Do2570, Dec. 23, 1980).

The court below, which made a different opinion, has erred in the misunderstanding of legal principles as to the crime of acting in concert with an anti-government organization under Article 7 (1) of the National Security Act. However, in light of the records, the first and second parts of the judgment of the court below are just, and it is sufficient to judge not guilty of this part of the facts charged, since the first and second parts of the judgment of the court below are sufficient to judge not guilty of this part of the facts charged. Thus, the above illegality of the court

2. As to the acquisition of pro-enemy materials

According to the reasoning of the judgment below, since the crime of acquiring pro-enemy contents under Article 7 (5) of the National Security Act is the crime of acquisition of pro-enemy contents is the crime of so-called purpose, the court below requires that the act of acquisition of pro-enemy contents in addition to the awareness of the pro-enemy nature and acquisition itself, as provided in paragraph (1) of the same Article, has the intent or awareness of the act of sharing or distributing the same as the act of distributing or selling, among the acts provided in paragraph (5) of the same Article, it can be deemed that the act of disseminating or disseminating the pro-enemy contents can be an act of praise, encouraging, or aiding the activities of anti-government organizations, etc., unless the purpose of the same Article is recognized, unless it is recognized that such an act is for academic research, art expression or profit-making, etc., but since such presumption is based on the ordinary perception of the propagation or dissemination inherent in the distribution or sale, it cannot be presumed that the defendant and the defendant were not guilty of the above act of distributing or acquiring the same as the mere acquisition or possession of North Korea.

Article 7(5) of the National Security Act provides that the purpose of the National Security Act is to recognize the act under paragraph (1), (3), or (4) without any need to be actively or finally aware of the act, and it can be satisfied with dolusent recognition. Thus, it is recognized that the contents of the expressive material objectively reflects the aptitude of acting in concert with North Korea, which is an anti-government organization. Furthermore, if there is dolusent perception that such an act may be transferred to another organization, the elements of the act are satisfied. In addition, if the expressive material containing an equitable nature such as acting in concert with North Korea, which is an anti-government organization, objectively, if the act of distributing, selling, acquiring, possessing, etc., such perceptions, but it is presumed that there is no dolusent perception that the act would be transferred to another person, and therefore, it is deemed that there is no e.g., academic research, profit-making, and attacking., it is deemed that there is an excess 193.39 of the Supreme Court en banc Decision.

Therefore, the opinion of the court below that held that the above presumption cannot be made as to the acquisition and possession of pro-enemy contents is contrary to the Supreme Court's precedents as seen above, and therefore it cannot be accepted. However, according to the records, it is reasonable that the court below acknowledged that the defendant's act did not constitute a "acquisition of pro-enemy contents" in the category of "acquisition of pro-enemy contents" in the crime of acquisition of pro-enemy contents, since the above act does not affect the conclusion of the judgment of the court below that found the defendant not guilty of this part. However, there is no reason to discuss this issue.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)