[1] The case denying the establishment of the crime of accepting money and valuables under the National Security Act on the grounds that there is no possibility of undermining the safety and existence of the State or the free democratic fundamental order in the case of Gan-K-K-K-K-K

[2] The case holding that the defendant was guilty of taking advantage of the following facts: the defendant's sacrife and escape from sacrife and sacrife, meeting, sacrife and rubber for participation in the events for the unification of the nation

[1] The case denying the establishment of the crime of receiving money and valuables under the National Security Act on the grounds that it is difficult for university students in North Korea to view that the act of receiving such goods is a case where the type, use, and content of the received goods is used as a visiting gift or a courtesy gift, and it is not a high-priced goods in their value, even though they are not significant goods in terms of encouragement for university students, they cannot be deemed as having close relations, such as the activity of anti-government organizations members, the group to which they belong to North Korean university students, and their ordinary activities are needed, and the rest of the goods except the hand-off reserve are left in North Korea, and it is difficult for university students in North Korea to view that the act of receiving such goods is a case where it is directly or closely likely to endanger the national existence and security or democratic fundamental order.

[2] The case holding that a person convicted him of taking part in the events for the unification of the Korean people and taking part in the events for the unification of the Korean people and taking part in the events for the unification of the Korean people and taking part in escape and locked, meetings, praises, and rubber

[1] Article 5 of the National Security Act / [2] Articles 6, 7, and 8 of the National Security Act

[1] The Constitutional Court Order 89HunGa113 delivered on April 2, 1990 (Gong11514, 21), Supreme Court Decision 93Do1730 delivered on September 28, 1993 (Gong1993Ha, 308), Supreme Court Decision 94Do126 delivered on April 15, 1994 (Gong194Sang, 1556)/ [2] the Supreme Court Decision 90Do1613 delivered on September 25, 199 (Gong190, 2235)

Defendant 1 and one other

Defendants and Prosecutor

Attorneys Shin Ne-ok et al.

Supreme Court Decision 96Do2158 Delivered on November 12, 1996

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) A postmortem;

(1) As to mistake of facts and misapprehension of legal principles

Of the facts charged of this case, the court below found the Defendants not guilty on the grounds that the Defendants’ receipt of money and valuables is difficult to view that the Defendants’ act of receiving money and valuables directly or adjacent to the State’s existence, safety or free democratic order, and there is no other evidence to recognize it, in light of the following: (a) the crime of receiving money and valuables under Article 5(2) of the National Security Act is established when the other party receiving money and valuables receives money and valuables knowing that it is a member of an anti-government organization or a person receiving such order; (b) the value or value of the money and valuables, or the relation with the activities of an anti-government organization, etc.; and (c) the Defendants do not require the consistent purport of the Supreme Court precedents to conclude that the Defendants did not receive money and valuables from North Korea and there is no intention to harm the Republic of Korea when they received them from North Korea, and in light of the aforementioned Supreme Court precedents and precedents, the judgment below is inconsistent with North Korea’s mere fact that the Defendants received money and valuables from North Korea’s religious groups or memorial activities, etc.

(2) The point of unfair sentencing

In light of the various circumstances of this case, the sentencing of the court below is unfair in light of the following: (a) the Defendants sold the current regime to the North Korea as the means of unification; (b) the Defendants divided the state theory that the Defendants’ instant act would contribute to the unification of South and North Korea; and (c) the Defendants sent the Defendants to the Korea-Japan and the North Korea-Japan organizations in a legitimate manner to commit their criminal acts; and (d) the Defendants expressed the Defendants in the U.S. dollars, and praises, etc., in light of the various circumstances of this case.

B. Defendants

(1) As to the illegality of the instant indictment

First, although the state's penal authority should be equal to all others and should not be exercised at a disadvantage only to a specific person, it is unlawful for the prosecution to institute a public prosecution against the Defendants without instituting any public prosecution against the South Korean economic people who visited North Korea and returned to North Korea, and disregarding the Defendants' pure motive for North Korea. Second, the prosecution of this case is unlawful since it is not clear and specific as to whom part of the facts charged in the instant case's meetings, communications meetings and meetings are held, and what part of the prosecution of this case's order is given or received, and what part of the indictment of this case's prosecution of this case's indictment of this case is rubber, praise, or not.

(2) Error of facts and illegality of legal interpretation

(A) As to the receipt, delivery, escape and diving

First, as to the fact that the defendants visited North Korea to obtain an order, there is no evidence to acknowledge that the defendants were subject to the first order to attend the North Korean Joint Committee as the representative of Korea, but to obtain an order, and the facts constituting the crime at the time of the original ruling are stated in detail, and the "order" under the National Security Act is objectively and concretely acknowledged that it would endanger the national security and existence, or endanger free democracy, and that it would not be prejudicial to the general principles of the law of the Republic of Korea, and that the defendants' right to receive an order to receive an escape should not be punished for the sake of the interests of the persons who issued such order, and that the defendants cannot be punished for the violation of the law of the Republic of Korea because it is not consistent with the general principles of the law of the Republic of Korea since the defendants' right to receive an escape from North Korea cannot be defined as a resolution of the joint agreement between the North Korea and the general principles of the law of the Republic of Korea prior to its arrival.

(B) As to the assembly, rubber, and obscenity

As to meetings:

Of the criminal facts in the original adjudication, among the criminal facts under Articles 2, 4, 6, 7, 8, 10, 11, 12, 13, 14, and 18, the accused shall be acquitted of the accused on the grounds that there is no evidence to acknowledge that there is no clear who the other party meeting of the accused, and there is no intention to endanger the national security and existence of the accused or to endanger the free democratic fundamental order.

As to rubber, praises

The Defendants, with purely speaking on the unification, freely expressed and announced their opinions in North Korea on the way of their unification and unification. The lower court’s most of the materials, such as rubber and praise, are merely the official opinions of a re-grout organization, such as Korean-style match, or emphasizes the source of salt for the unification, and thus, it cannot be said that the Defendants intended to commit any harm to the national security, existence or fundamental order of free democracy, or that there is no evidence to acknowledge such danger, and thus, the Defendants should also be acquitted of the facts charged.

Specifically, the theory of abolition of the National Security Act under paragraph (4) of this Article does not contain any content that helps North Korea or helps North Korea in anywhere in the past, and it cannot be said that the expression of the doctrine on the Kim Il-sung, as referred to in paragraph (9) of this Article, would pose a threat to the national existence and security. In addition, the contents of the Defendants’ unification under paragraphs (16) through (18) of this Article are not contrary to the unification policy stipulated in the Constitution of the Republic of Korea, and therefore, it cannot be said that these contents

(3) As to the issue of unfair sentencing

Even if it is recognized that the Defendants were guilty, the Defendants were to visit North Korea solely with the view to the unification of the nation, thereby contributing significantly to the interests of the nation and the nation, and contributed significantly to the interests of the nation and the nation, rather than doing any act detrimental to the national security, and the sentence of the lower court against the Defendants, who are conscientious offenders, is excessively unreasonable.

2. Determination on the grounds for appeal

A. Regarding the prosecutor's assertion of mistake and misapprehension of legal principles

Of the facts charged in the instant case, the summary of the violation of the National Security Act due to the receipt of money and valuables is aware that the Defendants may endanger the existence and security of the State or democratic fundamental order.

1. On Aug. 17, 1995, at around 16:10, 16:10, the eb.g., the eb., the eb., the eb.g., the ef., the eb.g., the eb., the eb., the eb.g., the ef., the eb., the eb.g., the eb., the eb., the eb.g., the eb., the ef., the eb.g., the eb., the ef., the eb.g., the ec., the ef., the

2. On August 21, 210 of the same year, according to the direction of the Gangwon-do of North Korean personnel, the Defendants visited the above lowest-nam to view the formation and internal facilities, etc., and received each one of the Defendants’ figures from the side of the full-scale creator, respectively;

3. On the same day, at the night, from three women of the age of 50 to the nearest 50, the defendants were delivered one set of a set of money at the night, with the name of 3 women of the age of 50 and the name of 50, and one set of money at the same time, and the 80cm wide and 60cm long and the 80cm long and 60cm long from the woman of the sex scar (in the first grade of the printing industry college), who together was in the same line.

4. From 21:00 on the same day, the members of the Switzerland's Union, which was an affiliate organization of the Cho Jong-gun who participated in the events "8.15 National Cemetery", visited the Defendants before leaving North Korea, divided about 30 out of 14/244 KK at the second floor of the Pyang-gu Hotel's hotel, and divided about 30 out of 1:0 to have a meeting at the same place on the following day, and received each Switzerland's Switzerland's Switzerland's knife book (the name J 144/244 K) from the name unfortude of male (20 middle class) who is the executive members of the organization;

5. On September 2, 200 of the same year, at the small conference room located on the 39th 39th Mayang-dong Hotel, the Defendants demanded that 20 executives of the student committee, such as Kim Jong-type college of education who visited the hotel along with the above maximum south of Korea, be able to be commemorative for students due to lack of their names, including the 20 staff members of the Kim Jong-type college of education (20 latter half) and the 196th Y.

Defendant 1

"청춘의 삶은 진정 이러해야 하는 것입니다. 오늘밤을 함께 보내며 이런 생각을 했습니다. 처음 만나도 조국사랑이라는 똑같은 마음으로 친절한 벗이 되고 열정적이고 창조적으로 서로의 마음을 나누는 백만학우와 북녘 친우들이 서로 한동이로 어울리는 그날이 기다려집니다. 그날까지 굳은 마음먹고 각자 자기 위치에서 힘차게 투쟁해 나갑시다. 그리고 김형직사범대학과 남녘 자매 결연대학과 서신왕래 등 자주교류가 잘 안되고 있는데 앞으로 더욱 노력을 부탁합니다."라고 기재해 주고,

Defendant 2

The life of young people who can see their own body for the co-operation of our fatherland will be fit for all us for the unification of our fatherland, and we continue to create a unification-related singing together with students, and the defendants receive one satisf (a) covered by "the unification of the fatherland" provided by the representatives of students at Kim-type colleges of education (a.e., about 1m, about 50cm in length);

6. On September 14:00 of the same year, Defendant 1, along with the nearest 30 members of the Kim Il-sung University, shall hear the explanation of the history and current status of the university from the university dean and the school chairman of the university (32 years old and older), and returned to various facilities, such as lecture rooms, museums, and Dong and plant and mineral exhibition centers, and requested about 10 students on the north side of the university, such as labor newspapers, to visit the press conference, and Defendant 2 shall read out the written out of the book prepared in advance, and thereafter, Defendant 2 shall hold 30 students' representatives and 30 students' meetings to exchange with the South and North Korean letters, etc., and exchange opinions on the unification of the university and the matters of mutual interest, etc., and then, he shall receive the opinions from each of the 5000 students' representatives and 10 students' representatives from each of the above universities and colleges, and shall prepare one student's opinions with each of the 100 students' representatives and 10 students' representatives from each of the university.

7. On September 12, 200 of the same year, 20 representatives of students, such as the president of the Kim Il-sung University Students' Committee, who visited the Defendants at the Pyeongyang hotel at the Pyeongyang Gyeongyang hotel at around 20:0 (32 years old) and the meeting of meetings, "measures to further strengthen exchanges and solidarity between North and South young students", "specific extent to leave the country in front of the North and South young students in the strike for the realization of the unification of the federal system", "elbs and abnormals of young students for the realization of the unification bureau" are discussed as the subjects, and "consembs and abnormals of young students for the realization of the unification bureau" are discussed as follows: Then, the phrase "Korean unification" was created in the 00dusan, which was collected from the 1st century provided by the Kim Il-sung University comprehensive Student Students' Committee at the Kim Il-sung University School Council at around 32 years old.

8. On the same day, at around 15:00 on the above 15:00 day, visit the Pyeongtaekyang Foreign Language University, tape-recording rooms, simultaneous interpretation practice rooms, etc. After attending a meeting of the exchange organized by the said University, following Defendant 1’s speech by the chairman of the University Students Committee, and following Defendant 1’s speech, he combined with the participants in the conference and sings related to unification, and delivered one set of the uniforms for the students of North Korea from the representatives of the students, one gift from each of the participants in the conference in North Korea (e.g., South, South, white, white, and one commodity from the representatives of the students;

9. On September 14, 15:00 of the same year visiting the Kim-type University of Education, and received a cryption, such as cryp dyp dyp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp ss

10. On September 14, 200 of the same year, the conference conference is held with representatives of Lyang Medical Universities and Colleges visiting the Defendants at the Ganyang hotel and the rest room at the 39th hotel of the same year, and the "measures to strengthen the autonomous exchange and solidarity between the students of young and female in the future with respect to the specific courses in the future" are exchanged with each other's opinions on the subject, and then give them a campaign speech by Defendant 1 and 2 to the representatives of students, and then receive a gift of the earth (+F) with a folklore which is a folklore in the 39th hotel of the same year.

11. 같은 해 9. 22. 15:00경 위 최정남과 함께 평양시 소재 김책공업종합대학을 방문하여 학생들로부터 꽃다발 증정 및 "장하다 한총련！", "조국통일" 구호제창 등 열렬한 환영을 받고, 전남대학교와 자매결연이 체결되어 있는 동 대학교 학생들에게 연설을 하고, 이어서 동 대학교 학생위원회 대표들과 현안문제에 관해 심도있게 의견을 교환하고, 소위 광주민중항쟁 열사를 추모하기 위하여 동 대학 구내에 조성되어 있는 조국통일 글자 모양의 진달래 화단을 돌아본 후 학생대표들로부터 피고인들의 얼굴이 조각되어 있는 수석 1점씩을 교부받고,

12. On the same day, at the meeting room of the second floor of the hotel taking into account in Pyeongyang at around 20:00 on the same day, 10 persons and 10 persons and 10 hours and 2 hours and exchange opinions on unification issues and other matters, and receive gifts each of them as gifts;

13. On the same day, at around 20:00, the executives and employees of the Lyang Foreign Language University Students' Committee who found the Defendants’ lodging room, and approximately 3 hours’ conference at the rest room of the said hotel on the 39th floor, and Defendant 1 and 2 made a speech by Defendant 1 and 2 on the statement of student representatives on their names, and received 3 points and 5 points from them as gifts;

14. Around 15:00 on September 25, 200 of the same year, the government-invested Cheongyang-si visited the chip clothes factory located in Pyeongtaek-si, and with the establishment of the president of the headquarters of the North Korean Cheongnam-do North Korea, which was located in the same place, visit the factory, and received each blost as gift from the name-free person who is responsible for the Dong office, and received money and valuables from the members of each anti-government organization.

However, according to the evidence duly examined and adopted by the court below, the fact that the defendants received each item from members of the anti-government organization can be acknowledged as stated in the summary of the facts charged at each time and place of the above facts charged.

However, in the case of the crime of accepting money and valuables under Article 5 (2) of the National Security Act, it is hard to see that the defendants' act of receiving money and valuables is not directly related to the above acts of anti-government organizations or the purpose of receiving money and valuables is not to protect anti-government organizations, but to accept money and valuables from members of the anti-government organizations or members of the anti-government organizations or members of the anti-government organizations with the knowledge of the fact that such acts may endanger the existence, safety or free democratic order. Thus, if the acts of receiving money and valuables are not likely to endanger the nation's existence, security or fundamental order, it shall not be punished as the crime of receiving money and valuables (see Supreme Court Decision 94Do126 delivered on April 15, 194). It is hard to see that the above acts of receiving money and valuables are likely to endanger the nation's existence, safety or democratic basic order, and it is hard to see that the fundamental order of the nation's existence and security should be endangered.

Therefore, this part of the facts charged shall be judged not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act because all of the facts charged are without proof of crime. For the same reason, the original judgment which acquitted the defendant is just and the prosecutor's argument of mistake of facts and misapprehension

B. As to the Defendants’ assertion that public prosecution is illegal

(1) As to the assertion that the right to prosecute is abused

The provisions of the National Security Act excludes the application of the National Security Act to the activities aimed at inter-Korean exchange and cooperation under Article 3 of the Inter-Korean Exchange and Cooperation Act to the extent deemed justifiable, and thus visit North Korea for the purpose of inter-Korean exchange and cooperation, and even if Articles 246 and 247 of the Criminal Procedure Act do not grant the prosecutor the right of arbitrary and unlimited prosecution, the prosecutor may institute a public prosecution in cases where it is deemed reasonable to impose criminal sanctions as they constitute the elements of the crime, and the prosecutor is granted discretion to not institute a public prosecution in consideration of the facts indicated in Article 51 of the Criminal Act. In light of the background and content of the prosecution in this case, the facts acknowledged by the court below, etc., the prosecution in this case cannot be deemed to constitute an abuse of the right of public prosecution, and thus, this part of the defendants' assertion is without merit

(2) As to the assertion that the facts charged are unspecified

Article 254(4) of the Criminal Procedure Act provides that the date, time, place, and method of a crime shall be specified (Article 254(4) of the Criminal Procedure Act). However, even if part of the facts charged can be identified and distinguished from other facts, that is, the identity of the facts charged can be recognized and the elements for the constitution of the crime can be identified, and even if it is somewhat unclear, the effect of prosecution shall not be affected if it can be specified by other matters indicated together. In light of the facts charged in the instant case, it appears that there was a specific specification of the facts charged as stated in Article 254(4) of the Criminal Procedure Act, and it appears that the other party to the meeting is the person who received the order, which part of the facts charged was clearly identified, and it was not specified in the facts charged. Thus, this part of the assertion that it

C. As to the defendants' assertion of mistake of facts and misapprehension of legal principles

(1) As to escape and diving of booms

First, Article 6 (2) of the National Security Act provides that the concept of the above order includes instructions and orders, and there is no restriction on the form of order, and it is necessary to establish a locked entry crime from an area under the control of an anti-government organization, and it is necessary to have an intention to carry out such an order at the time of escape. However, whether the above act was closely carried out at the time of escape does not affect the establishment of escape and diving (see Supreme Court Decision 90Do1613 delivered on September 25, 190). According to the evidence duly examined and adopted by the court below, since the defendants participated in the national unification axis which was promoted by the North Korean public organization and the first time North Korean public order which was held as part of the above events, and there is no reason to view that the above act was committed for the purpose of unification of the Republic of Korea through the National Assembly and the first time North Korean public order which was approved by the North Korean public organization as well as the reason why the above act was committed.

(2) As to the assembly, rubber, and obscenity

(A) As to the point of the meeting

According to the facts of the crime committed in the judgment of the court below, although the names of members of the anti-government organization held by the defendants have not been specifically identified, the number of members present at the position and the place and other facts are identified as members of the anti-government organization. In full view of the motive and purpose of the defendants' entry into North Korea, the details and the process thereof, etc., as seen above, it is evident that the meeting of the defendants would endanger the national security and existence or endanger the free democratic basic order. Thus, the defendants' assertion that there is no such danger is without merit.

(B) As to rubber and obscenity

The court below’s finding that the Defendants’ rubber, motive, circumstance, and the present situation are obviously likely to endanger the safety and existence of the State or endanger the free democratic fundamental order in the original adjudication based on the evidence duly examined and adopted by the court below. Thus, the Defendants’ assertion that there is no such danger or mere mere mere pure unification of the Defendants is without merit.

D. As to the assertion that the National Security Act has no effect as a penal provision and is unconstitutional

Article 6 (1) of the Addenda to the Constitution promulgated on October 27, 1990. Article 6 (1) of the former Constitution provides that the National Assembly shall act on behalf of the National Assembly from the date of the enforcement of the Constitution to the date preceding the first assembly of the National Assembly under the former Constitution, and the provisions of the Constitution that grant legislative rights to the National Assembly for National Security was established. Meanwhile, Article 5 of the Addenda to the current Constitution, which was promulgated on October 29, 1987 and enforced on February 25, 1988, continues to be effective unless it violates the current Constitution, and thus, the so-called continuing effect of the former Act is recognized. Thus, the former Act that loses its effect due to its violation of the current Constitution can not be consistent with the current Constitution, and as long as it does not so, it can not be seen that the enactment of the Constitution or its procedures are unconstitutional and thus, it constitutes a new violation of the fundamental order of the National Security Act by the Constitution and the National Security Act, even if it is enacted by the amendment of the Constitution.

E. On the grounds of unfair sentencing by both parties

Examining the motive and purpose of the Defendants’ entry into and exit from North Korea, the details of their entry into and exit from North Korea, the influence of the Defendants on the unification policy or the method of unification on the Government of the Republic of Korea or the citizens due to the instant acts, and all other circumstances that form the basis for the sentencing of the instant case, including the Defendants’ age, character and conduct, family relationship, and criminal record, it is not recognized that the sentence imposed by the lower court against the Defendants is appropriate, too weak, or unreasonable.

4. Conclusion

Therefore, since all appeals filed by the Defendants and the prosecutor are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Choi Byung-Ji (Presiding Judge)