Defendant

Defendant and Prosecutor

Lee Jin-jin

Attorney Seo Chang-il

Suwon District Court Decision 2008Gohap664, 751 (Merger) Decided August 14, 2009

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The seized one vote (No. 1) and one vote (No. 2) shall be confiscated on the data collection of the 2008 regular Congress in 2008 and one vote (No. 2) shall be confiscated.

Of the facts charged of this case, the injury inflicted on the special obstruction of performance of official duties on September 11, 2005 shall be acquitted.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts or misapprehension of legal principles

The court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

(A) Violation of the Act on the Injury to Special Performance of Official Duties and Assembly and Demonstration

The Defendant, around 2005 and 2006, did not have a position to prepare various demonstrations in which the Korean Federation of Korean University Students in 2005 (hereinafter referred to as the “Korean Federation”) participated in the unification salary of the Korean Unification Korea in 2007 (hereinafter referred to as the “Korean Federation of Youths”), and did not perform such a role, and recognized that the Defendant led the above assemblies even though he did not participate in, or participated in, assemblies such as the facts charged, even if he did not participate in, or was only a simple participant.

(b)General traffic obstruction;

The act of the defendant on the street with citizens can not be deemed to constitute a constituent element of the general traffic obstruction, and if it comes to the case of obstructing road traffic by other means, there is a problem of infinitely expanding the scope of punishment due to the abstract criminal law.

(C) unconstitutionality of the National Security Act

The National Security Act is a unconstitutional law that suppresss the freedom of ideas and the press, which is the foundation of democracy, and undermines peaceful unification movement.

(D) Violation of the National Security Act due to the accession of an immigration organization

The nature of the Joint Declaration of South and North Korea (hereinafter referred to as the “actual nature”) is a body launched to practice the Joint Declaration of 6.15 and is not an organization established for the peaceful unification and democratic development of South and North Korea, but for the purpose of praiseing, encouraging, promoting, or aiding and abetting North Korea, or promoting and instigating the national defense. The practice solidarity was unlawful since it did not assert the unification of the federal system, and the core members of the anti-U.S. colonization or the practice solidarity pursued by the practice jointly and severally have the history of violating the National Security Act.

(E) Violation of the National Security Act due to possession of pro-enemy materials

In 208, the 2008 regular conference data collection was used by the board of representatives, which is a decision-making body for practice solidarity, and it does not have any aptitude because it was merely a kind of business plan rather than containing any argument. The book book of the Korean people's patriarche, which is the Korean people's patriarch, did not have an overall context. Furthermore, the Defendant merely possessed the instant expressive materials for the purpose of praiseing, encouraging, promoting, or aiding and abetting the activities of North Korea, which is an anti-government organization, since it was not recognized that the Defendant possessed the instant expressive materials for the purpose of praiseing, encouraging, or aiding them.

(2) Unreasonable sentencing

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

(b) Prosecutors;

(1) misunderstanding of facts

Comprehensively taking account of the evidence submitted by the prosecutor, the court below found the defendant not guilty of this part of the facts charged, in violation of the rules of evidence, and affected the conclusion of the judgment by misunderstanding the facts against the rules of evidence, even though it was found that the defendant conspired with the participants in the above assembly at an assembly held in front of the military base of the United States Armed Forces on August 10, 2007, and assaulted the police officers by multiple force, thereby causing injury to the left-hand 1 resin, which requires approximately two weeks medical treatment, to Non-Indicted 7 belonging to

(2) Unreasonable sentencing

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination

A. As to the injury resulting from the obstruction of performance of official duties on September 11, 2005

(1) Summary of this part of the facts charged

From September 11, 2005 to 24:00 on September 11, 2005, the Defendant, while engaging in the 13th Franchising of the Central Committee of Korea (hereinafter referred to as “the 13th Franchising Bureau”), took part in the 4,000 members of the 13th Franchising Republic of Korea (hereinafter referred to as “the 13th KFF”) meeting with Nonindicted 2, 3, and 4, the chairman of the KFF group, and Nonindicted 4, who took part in the 6th Franchising Assembly, and took part in the 4,000 members of the 6th Franchising Republic of Korea (hereinafter referred to as “the 5th Franchising Bureau”), took part in the 6th franchising assembly, and took part in the 6th franchisor’s duties, and franchisor’s duty to kill or kill the police officer’s disease, etc., and interfere with each dangerous.

(2) Basic principles

Article 30 of the Criminal Act is established upon fulfilling the subjective and objective requirements of crime committed through functional control based on the intent of joint processing and the intent of joint processing. Even in cases where part of the competitors have not been carried out by directly sharing part of the constituent elements, if it is acknowledged that functional control through essential contribution to the crime exists, rather than merely a conspiracy, if it is recognized that there exists a functional control through substantial contribution to the crime, the so-called crime as a co-principal cannot be exempted. Further, in cases where two or more persons are jointly processed for a certain crime, the conspiracy does not require any legal fixed punishment, and it is only a combination of two or more persons to realize the crime through joint processing, and even if a combination of opinions is carried out by several persons, the conspiracy relationship is established, and if it is not carried out by the doctor, even if it is not carried out by the direct participation of the act, it is not necessary to punish other persons as a co-principal, and as a result, it is necessary that two or more public officials should be held as a result of the crime of obstruction of performance of duties, and it is necessary to be jointly carried out.

(3) Determination

The court below found that according to the evidence in its holding, the defendant participated in the meeting with the president at the time of the meeting, etc. and discussed the situation of the meeting with the president at the time of the meeting, etc., due to the experience of the defendant's major executive officer and the number of college students more than that of the college students, and the records of criminal punishment due to the violation of the National Security Act, etc. The court below found that the defendant had actively participated in the above meeting, such as the turning of the Korean president at the time of the meeting and the chairman, etc., and it was hard to accept the judgment of the court below in this part of the charges on the ground that the plaintiff et al. who participated in the above meeting including the defendant et al. was guilty on the ground that the 63 police officer continued to participate in the demonstration at the time of the demonstration by exercising violence as stated in its judgment.

Rather, in light of the following circumstances acknowledged by the lower court and the first instance court’s ruling, it is difficult for the Defendant to view the above part of the assembly and demonstration to have been duly adopted and investigated by the police officer, namely, Nonindicted 4, who was the general officer of the first instance court to have been appointed by the Defendant as the chief executive officer of the assembly and demonstration, and the other executive officer of the first instance court. Nonindicted 3 testified that the Defendant was not a chief executive officer of the assembly and demonstration who was not the chief of the assembly and demonstration officer of the first instance court, and that the Defendant was not a chief of the assembly and demonstration officer of the second instance court, but was not a chief of the assembly and demonstration officer of the second instance court, and that the Defendant was not a chief of the assembly and demonstration officer of the second instance court, and that the Defendant was not a chief of the assembly and demonstration officer of the second instance court, and that there was no evidence to the effect that the Defendant was a chief of the assembly and demonstration officer of the second instance court’s first time, and that the Defendant was not a chief of the police officer’s.

B. As to the injury resulting from the obstruction of performance of official duties on August 10, 207

(1) Summary of this part of the facts charged

On August 10, 2007, from around 14:15 to 19:00, the Defendant participated in the unification salary group of 200 university students, together with Nonindicted 8 in the Department of Korean Unification, which was held in front of the military base of the United States Armed Forces located in the Si of the Si of the Si of the Gun of the United States, leading 10 students of the United States Armed Forces to the “U.S.-U. military peace conclusion,” and the “U.S.-U.S.-U.-U.S.-U.-U.S.-U.-U.-U.S.-U.-U.-U.-U.S.-U.-U.-U.S.-U.-U.-U.-U.S.-U.-U.-U.S.-U.-U.-U.S.-U.-U.-U.-U.S.-U.-U.-U.S.-U.-U.-U.S.-U.-U.-U.-U.-U.-U.P.P.

(2) The judgment of the court below

The court below found the defendant guilty only for the crime of obstruction of performance of official duties among the facts charged on the ground that the defendant continued to participate in the above demonstration on the ground that there was no evidence to prove that the defendant had suffered injury, such as the defendant's career, age, etc., while performing a major role in the unification salary team, and the above assembly was actively participated in the above assembly, such as by attracting the students of the unification salary team with the non-indicted 8. In the above assembly, the participants, including the university students of the unification salary team, attempted to enter the military base of the U.S. military forces and prevented police officers from participating in the demonstration, etc., even though the demonstration was displayed, the students of the unification salary team who participated in the above assembly including the defendant continued to participate in the above demonstration, but there was no evidence to prove that the non-indicted 7 suffered injury, such as the above facts charged.

(3) Judgment of the court below

Considering the following circumstances acknowledged by the lower court and the first instance court’s duly adopted and investigated evidence, the Defendant participated in various assemblies where the police officers and police officers participated in the unification fighting with the members of the unification wing team, and the members of the unification 8 and the members of the organization protegatored in the military at the time of the above assembly, the members of the unification wing team and the members of the organization protegatored in the military were trying to enter the military base, and the members of the unification wing team were on the face of the police officers, and were unable to take advantage of the above facts that the Defendant was unable to take advantage of these circumstances, such as violence, which resulted in the Defendant’s injury to the police officers and carried out the military fighting team at the time of the unification 8’s meeting, and thus, it was difficult for the Defendant to take advantage of the aforementioned legal principles as to the police officers and police officers’ right to participate in the assembly at the time of the unification 17th of the Central Assembly.

C. On the violation of the Assembly and Demonstration Act

The court below acknowledged that the defendant participated in each assembly like this part of the facts charged at the prosecutor's office and the court below. On November 18, 2005, when the defendant participated in an opposing assembly against Busan APEC, it seems that the demonstration team and the police officers appeared to have been able to sufficiently anticipate conflicts with the police officers, such as assaulting police officers, etc., because the defendant appeared to have been able to participate in the assembly until the assembly is completed. The defendant's participation in each assembly as members of the unification team without reporting the lawful assembly most of the assemblies at the US military base, the security investigation team, and the Hanna Party, etc., which were the situation where the police officers and the defendant participated in the assembly, and the defendant's participation in the assembly was sufficiently anticipated to conflict with the police officers (the defendant's participation in the assembly at the time of the above assembly at the time of the assembly at the time of the assembly at the time of the assembly at the time of the public prosecutor's office and the police officers's participation in the assembly at the time of the assembly at the time of the assembly at 17th day of Seoul.

D. As to each general traffic obstruction

(1) Basic principles

The purpose of Article 185 of the Criminal Act is to punish all acts that make it impossible or considerably difficult to pass through by destroying or infusing land, etc. or interfering with traffic by other means, and the obstruction of general traffic as an abstract dangerous crime is not the case where traffic is impossible or considerably difficult, and the obstruction of traffic in general is not the case where traffic is impossible or considerably difficult, and the result of traffic obstruction is not the case where traffic is not the actual result (see Supreme Court Decisions 95Do1475, Sept. 15, 1995; 2004Do7545, Oct. 28, 2005, etc.).

In addition, every citizen shall be guaranteed the freedom of assembly or demonstration as prescribed by Article 21 (1) of the Constitution. In particular, since an assembly or demonstration on the road may seriously conflict with the public interest, such as the right to traffic or smooth traffic flow, in such a case, the right to assembly and demonstration should be guaranteed to the maximum extent as well as an appropriate balance should be ensured so as not to infringe on public traffic rights and order, including smooth traffic flow, and accordingly, Article 6 (1) of the Assembly and Demonstration Act (hereinafter “the Assembly and Demonstration Act”) provides that a person who intends to hold an outdoor assembly or demonstration shall submit a report stating the purpose, date, time, place, organizer, organization scheduled to participate in the assembly or demonstration to the chief of the competent police station. Article 12 (1) of the Assembly and Demonstration Act provides that the head of the competent police station may, if deemed necessary for traffic flow on the main roads of major cities as prescribed by the Presidential Decree, prohibit the assembly or demonstration from being reported, or restrict the assembly or demonstration from being reported in light of the purpose and purpose of the Assembly and Demonstration Act (see Article 16).

(2) Determination

The court below acknowledged that the defendant participated in each assembly related to this part of the facts charged at the prosecutor's office and the court below. The defendant stated that all of the assemblies related to the FTA were driven by the prosecutor's office without legitimate assembly report. Each of the above assemblies in which the defendant participated was held without legitimate assembly report, and the police requested voluntary dispersion to the participants of the demonstration and did not comply with the dispersion order because the police did not comply with the assembly or demonstration that could clearly cause a direct danger to the maintenance of order such as traffic flow, etc., the defendant's failure to comply and continued the assembly. In full view of the above legal principles, the defendant interfered with the traffic of each road as stated in this part of the facts charged while occupying the road along with other participants of the demonstration. Thus, the defendant's participation in each assembly and obstructing traffic for a considerable time with other participants of the demonstration, and the defendant's act of interference with traffic on roads constitutes a violation of the elements of general traffic under Article 185 of the Criminal Act.

In addition, although the defendant was at each site of candlelights meeting against the import of U.S. beef, he was at each of the above sites to drive the broadcast vehicles “615TV,” which is an Internet broadcast, and only at the conference site for reporting the press, cannot be deemed to have participated in each of the above assemblies. However, in light of the fact that the defendant stated that he participated in each of the above assemblies since the prosecutor's office, up to the trial, he participated in the appeal period, and that he stated that he had participated in the above assemblies, it is difficult to believe that he was the witness's testimony. Even if the defendant tried to operate the above broadcast vehicles at each of the above assemblies, it is difficult to view that he participated in the assembly outside of driving hours and that the defendant was at each of the above assemblies only for the purpose of gathering news from a neutral point in view of the characteristics of the above broadcasts supporting the contents of each of the above assemblies, the above argument is without merit.

E. On the violation of the National Security Act

(1) Whether the National Security Act is unconstitutional or not

The principle of international peace and peaceful unification declared in Articles 4 and 5 of the Constitution is premised on the premise that it does not undermine the fundamental order of free democracy, which is the basic order of our Constitution. Thus, in the situation where it is clear that North Korea has given up the waiver of the fundamental order of free democracy in our society with a strong military force, and there is a threat to our democratic fundamental order, it cannot be deemed as a violation of the National Security Act with the aim of securing the national security and survival and freedom of citizens by regulating anti-state activities that may endanger the national security, and it cannot be deemed that the concept of the elements of each crime prescribed in the National Security Act, which is reasonably interpreted in light of its purpose, violates the fundamental contents of the principle of no punishment without the law, since the freedom of conscience, freedom of press and publication are fundamental rights guaranteed by the Constitution, but there is no restriction, and it cannot be deemed that there is no violation of the fundamental contents of the freedom and rights of the defendant within 97 Supreme Court en banc Decision 97Do97989, May 19, 19797.

(2) As to joining a pro-enemy organization and possessing pro-enemy materials

The above argument to the effect that the defendant denies this part of the facts charged was also presented in the court below, and the court below stated in detail the decision on it with the title "reasons for the crime of oil", and there is no error of mistake of facts or of misunderstanding of legal principles in the court below's decision.

Furthermore, in light of the following circumstances acknowledged by the record, namely, the Defendant stated at the prosecutor’s office and the lower court that he read the materials collection of the Assembly Assembly in 2008 and the front part of the books of Korean people mosives, and considering the organization, content, preparation process, subject, etc. of all these materials, even if the Defendant did not read all these materials, the Defendant could have known that the contents of the materials contain different aptitude and that he could have been able to act as a pro-enemy, such as obsing and encouraging North Korea, etc., and even if our nation’s book is legally published and sold and open to the public or made available on the Internet site, this part of the facts charged against the Defendant can be fully recognized, and this part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, among the judgment below, the defendant's appeal against the injury caused by the special obstruction of performance of official duties as of September 11, 2005 and the prosecutor's appeal against the injury caused by the special obstruction of official duties as of August 10, 2007 are with merit. The remaining parts of the judgment below also convicted all of them, and inasmuch as the court below rendered a single sentence on the grounds that each part of the above grounds for reversal and the case constitutes concurrent crimes as stipulated in the former part of Article 37 of the Criminal Act, it is inevitable to reverse all of them. Thus, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the judgment

The summary of the facts of the crime and its evidence acknowledged by the court below are as follows. The facts of the crime are as follows. The defendant's 2nd 11 and 12th 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2000 "is detained on August 3, 2004 due to the fact that the defendant participated in the unlawful violence demonstration, such as the resolution of the Crick Posa, etc., on August 3, 2004 and acquired and distributed pro-enemy contents such as the North Korean History in March 3, 2005." The defendant's 7th 2nd 2nd 12th 2007 changed the contents of the crime as follows, and deleted the summary of the evidence (conform64, 2008nd 64th 207) and added a copy of the judgment below's 3th 209th 2nd 3th 2006.

On August 10, 2007, from around 14:15 to 19:00, at the time of the military base located in the Si of the Si of the Si of the Si of the Si of the United States, 200 university students were led to 200 university students in the unification salary division, together with Nonindicted 8 of the Cheongnam District Police Agency, which was held in front of the military base of the Si of the United States Armed Forces, and 14:15 to the 19:00, and the group of 200 university students and approximately 70 members of the organization located in the Gun of the United States Armed Forces in sequence of the above assembly, "the person who was removed from the military base of the Republic of Korea and was in front of the unification of the Republic of Korea" was able to provide relief, and to enter the military base of the United States Armed Forces by assaulting the police officers assigned to the ○ Police Agency of the United States of the Republic of Korea, thereby causing harm to the left-hand of the public order and injury of the police officers.

1. Article applicable to criminal facts;

(a) Article 144 (2) (main sentence) and (1), Article 136 (1), and Article 30 of the Criminal Act.

(b) Article 19 (4), Article 5 (1) 2 of the former Assembly and Demonstration Act (amended by Act No. 8424 of May 11, 2007), Article 22 (4) and Article 5 (1) 2 of the former Assembly and Demonstration Act (amended by Act No. 8424 of Nov. 18, 2005), and Article 22 (4) and Article 5 (1) 2 of the former Assembly and Demonstration Act (the participation in collective violence assemblies in money)

(c) Articles 185 and 30 of the Criminal Act.

(d) Article 7 (3) and (1) of the National Security Act (the point of joining the enemy organization);

(e) Article 7 (5) and (1) of the National Security Act (the point of possession of an expression of interest);

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment imposed on August 7, 2007 and November 11, 2007 on November 2007)

1. Selection of punishment;

The choice of imprisonment for each violation of the Assembly and Demonstration Act and each general traffic obstruction shall be punished by imprisonment.

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Crimes of Injury resulting from Special Obstruction of Official Duties, which is the largest Punishment)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Considering the fact that the Defendant committed each of the crimes of this case, such as the crime of injury resulting in obstruction of performance of official duties, general traffic obstruction, crime of violation of the Assembly and Demonstration Act, and crime of violation of the National Security Act, which committed a crime similar to the crimes of this case, committed by a person who was sentenced to a suspended sentence of imprisonment with prison labor by actively participating in various illegal and violent assemblies even during the suspended sentence period, causing injury to police officers, and committing acts by joining the practice solidarity, which is a dual organization, the responsibility for the crime is important. The expression of his own assertion and opinion through legitimate assemblies and demonstrations is based on the fundamental rights of the people guaranteed by the Constitution or the basic premise that the expression of his opinion by legitimate assemblies and demonstrations is respected with respect to the legal order of the State and the rights of other people, and the culture of a demonstration which only takes his voice is very wrong as a means of disregarding such restriction and violence. In view of the fact that the act of joining a pro-enemy organization and spreading it may threaten the free democracy system of the Republic of Korea and bring about social confusion, the need to punish the Defendant is still inevitable.

However, it seems that the defendant did not play a major role in relation to the dual act of practice solidarity, the defendant appears to not exercise violence against police officers most while participating in various assemblies, and the degree of violence seems to be minor even in the case of exercising direct violence, and the degree of injury of non-indicted 7 is relatively minor, etc., the punishment like the order shall be determined by taking into account the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the defendant is relatively minor.

The summary of this part of the facts charged is as described above 2. A. (1) and as described in 2. A. (2) (3) as described in the above 2.A. (1), this part of the facts charged falls under the case where there is no proof of a crime, and thus, is acquitted under the latter part of Article 325 of the Criminal

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

Judges Lee Ki-taik (Presiding Judge)