[1] Whether Article 3 of the former Inter-Korean Exchange and Cooperation Act preferentially applies to the same Act (affirmative), and the standard for determining whether the act of traveling between South and North Korea is justifiable as an act aimed at inter-Korean exchange and cooperation or is recognized as being within the scope of the purpose of the former Inter-Korean Exchange and Cooperation Act

[2] The case affirming the judgment below that the defendant's act of visiting North Korea or attempting to visit North Korea to learn North Korean system and Kim Il-sung does not constitute "an act for the purpose of exchange and cooperation between South and North Korea" under Article 3 of the former Inter-Korean Exchange and Cooperation Act

[3] The requirements and standard for determining whether a person is a “personal expression” under the National Security Act

[4] The case affirming the judgment of the court below which held that an adviser, under the name of the chairperson of the Joint Declaration of South and North Korea, the "Clelelight fight and the era of citizen sovereignty," which was inserted in the "Egrhovag in North Korea", the "Egrgical photo of the Mag Il-sung," and the "Segrhovagicist's Sg

[1] The issue of whether the act of coming between South and North Korea constitutes a trade and cooperative project as provided by the Inter-Korean Exchange and Cooperation Act, whether the specific purpose of coming from North Korea constitutes a trade and cooperative project as provided by the Inter-Korean Exchange and Cooperation Act, whether the person traveling from North Korea actually engaged in the trade and cooperative project, and whether the act of coming from and going from South and North Korea is deemed justifiable, or whether it is deemed within the scope of the purpose of the Inter-Korean Exchange and Cooperation Act, should be determined objectively by comprehensively taking into account the following factors: (a) the circumstance leading up to coming from and going from North Korea; (b) whether the person traveling from North Korea falls under the category of trade and cooperative project as provided by the Inter-Korean Exchange and Cooperation Act; (c) whether the person traveling from North Korea actually engaged in the trade and cooperative project; and (d) whether the person traveling from North Korea was the person traveling from North Korea before and after coming from North Korea.

[2] The case affirming the judgment below that the defendant's act of visiting or attempting to visit North Korea to learn North Korean system and Kim Il-sung does not constitute "an act for the purpose of inter-Korean exchange and cooperation" under Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357 of Jan. 30, 2009) before and after the amendment by Act No. 7539 of May 31, 2005

[3] In order to be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the existence and security of the nation, which is the legal interest protected under the National Security Act, and the fundamental order of free democracy. Whether the expressive materials have such objection shall be determined by taking into account not only the whole contents of the expressive materials, but also all the circumstances such as the motive for making the expressive materials, the form of the expressive act itself,

[4] In a case where the Defendant was indicted for violating the National Security Act by having his/her residence, etc., on the grounds that he/she kept the contributed person under the name of the chairperson of the Joint Declaration of South and North Korea in the name of the chairperson of the Joint Declaration of South and North Korea and the chairperson of the Natural Policy Center in the name of "Clelelelights and the people's sovereignty era", two "North Korea's personal character pictures," and "Clelights and the people's sovereignty times" inserted in the "Slelights" and "Slelights and the people's sovereignty times," the case affirming the judgment below which held that all the circumstances of the Defendant did not constitute pro-enemy pro-enemy under the National Security

[1] Articles 3 and 9(1) of the former Inter-Korea Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005); Articles 3 and 9(1) of the former Inter-Korea Exchange and Cooperation Act (amended by Act No. 9357 of January 30, 2009); / [2] Article 3 of the former Inter-Korea Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005); Article 3 of the former Inter-Korea Exchange and Cooperation Act (amended by Act No. 9357 of January 30, 2009) / [3] Article 7(1) and (5) of the National Security Act / [4] Article 7(1) and (5) of the National Security Act

[1] Supreme Court Decision 92Do1815 Decided February 9, 1993 (Gong1993Sang, 1025), Supreme Court Decision 97Do1656 Decided September 9, 1997 (Gong1997Ha, 3211), Supreme Court Decision 99Do4027 Decided December 28, 199 (Gong200Sang, 429) / [3] Supreme Court Decision 2002Do4278 Decided March 11, 2005, Supreme Court en banc Decision 2010Do189 Decided July 23, 2010

Defendant

Defendant and Prosecutor

Law Firm (LLC), Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2009No1731 Decided August 27, 2009

All appeals are dismissed.

1. The grounds of appeal by defense counsel are examined.

A. As to the argument regarding North Korea's performance of anti-government organization

Although North Korea is a partner of dialogue and cooperation for the peaceful unification of South and North Korea, North Korea still has the character of anti-government organization that is bound to adopt our liberal democracy system while enhancing the hostile unification route despite changes in the relationship between South and North Korea, and therefore, it is established by the Supreme Court that the normative power of the National Security Act that regulates anti-government organizations, etc. is still valid (see Supreme Court en banc Decision 2010Do189, Jul. 23, 2010).

Therefore, the court below is just in holding that North Korea’s anti-government organization cannot be seen as extinguished, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to anti-government organization under Article 2 of the National Security Act

B. As to the assertion on the application of the Inter-Korean Exchange and Cooperation Act

Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 7539, May 31, 2005; hereinafter the same shall apply) of the defendant's visit to North Korea at the time of the visit to North Korea of this case provides that "this Act shall apply in preference to other Acts to the extent that it is deemed justifiable with respect to the activities for the purpose of inter-Korean exchange and cooperation, such as the visit to and trade and cooperation between South and North Korea and the North Korea, and the provision of telecommunications services, etc." Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357, Jan. 30, 2009) of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 9357, Jan. 30, 2009) provides that "this Act shall apply in preference to other Acts within the extent of the purpose of this Act".

Article 3(1) of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 1981, Jan. 1, 2001) includes the National Security Act. On the other hand, whether an act of inter-Korean communications between South and North Korea is "an act for inter-Korean exchange and cooperation" or "an act for inter-Korean exchange and cooperation" is "an act for the purpose of inter-Korean exchange and cooperation" or "an act within the scope of the purpose of the above Act" should be determined objectively by comprehensively taking into account the circumstances leading up to the visit between North Korea and North Korea, whether a certificate of visit has been issued as prescribed by Article 9(1) of the above Act, whether the specific purpose of the visit constitutes trade and cooperative activity as prescribed by the aforesaid Act, whether a person from North

Upon examining the reasoning of the judgment below in light of the above legal principles and records, it is just that the court below's act of visiting North Korea of this case and visiting North Korea of this case for reasons as stated in its reasoning does not constitute an act for the purpose of inter-Korean exchange and cooperation under Article 3 of the former Inter-Korean Exchange and Cooperation Act before and after the above amendment, and there is no error in the misapprehension of legal principles as to the application

The Defendant asserts that Article 3 of the former Inter-Korean Exchange and Cooperation Act shall apply to the Defendant’s act of meeting around July 2004, the meeting on January 14, 2007, and the meeting of patrolmen on May 2007. However, since the Defendant’s assertion that it should reach the final appeal, it cannot be said that there was an unlawful cause in the lower judgment.

C. As to the assertion related to the risk of substantial harm to the national existence and security or free democratic fundamental order

The principle of interpreting that the National Security Act shall be applied to cases where there is an obvious risk of substantial harm to the existence and security of the State or the free democratic fundamental order, and the principle of interpreting that the National Security Act shall be applied to the crimes of diving or escape as provided in Article 6 of the National Security Act and the crimes of meetings and communications, etc. as provided in Article 8

Examining the reasoning of the judgment below in light of the above legal principles and the records, it is just that the court below determined that the act of the defendant's visiting North Korea of this case and attempting to visit North Korea of this case on July 2004, the meeting around January 14, 2007, and the meeting of patrolmen on May 2007, that there is an obvious risk of substantial harm to the national existence and security or democratic fundamental order, and there is no error of law such as misunderstanding of legal principles as to the determination of risk likely to pose substantial harm to the national existence and security or democratic fundamental order, as alleged in the grounds of appeal.

D. As to the assertion that the defendant did not possess two 15 books among the 15 books of "the 15th century" and "the anchored" (hereinafter "the 15th century").

The Defendant’s allegation in this part of the grounds of appeal is merely to criticize the selection of evidence and fact-finding belonging to the lower court’s full power as a fact-finding.

E. As to the assertion that the term “in the century and at the same time,” and “the anchored” did not constitute pro-enemy contents

In order to be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the nation’s existence and security and the liberal democratic fundamental order, which are protected legal interests under the National Security Act. Whether the expressive materials have such objection should be determined not only by the overall contents of the expressive materials, but also by taking into account all the circumstances such as the motive for the production thereof, the form of the expressive act itself, matters related to external activities, and circumstances at the time of expressive act (see Supreme Court en banc Decision 2010Do189, Jul. 23, 201

Examining the reasoning of the judgment below in light of the above legal principles and the records, it is justifiable to determine that the court below, on the grounds stated in its reasoning, constitutes pro-enemy pro-enemy materials, “the defendant had been at anchor” and “the defendant had been at anchor.” There is no error in the misapprehension of legal principles

2. Prosecutor's grounds of appeal are examined.

A. As to the assertion regarding each of the instant obscenity and rubber activities

The principle of interpretation that the National Security Act should be applied to cases where there is an obvious risk of substantial harm to the existence and security of the State or the free democratic fundamental order, shall also apply to crimes, such as praises, rubber, etc., prescribed in Article 7 of the National Security Act.

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in holding that the act of obscenity and rubber of the defendant in this case does not have an obvious risk of substantial harm to the national existence and security or free democratic basic order, and there is no error in the misapprehension of legal principles as to the determination of risk which may obviously harm the national existence and security or democratic basic order, as alleged in the grounds of appeal

B. As to the assertion that human air, Kim Il-sung's photograph and "candlelight resistance dispute and people's sovereignty era" are pro-enemy contents

To be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the nation’s existence and security and the liberal democratic fundamental order, which are protected legal interests under the National Security Act. Whether the expressive materials have such objection shall be determined not only by the overall contents of the expressive materials, but also by taking into account all the circumstances such as the motive for the production thereof, the form of the expressive act itself and matters related to the outside, and the situation at the time of expressive act (see Supreme Court en banc Decision 2010Do189, Jul. 23, 2010

Examining the reasoning of the judgment below in light of the above legal principles and the records, it is justifiable to determine that the court below did not regard the "human air", "a laverg photo", and "candlelights and citizen sovereignty time" possessed by the defendant as pro-enemy contents, and there is no error in the misapprehension of legal principles as to pro-enemy contents, contrary to the allegations

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)