[1] Whether North Korea's anti-government organization and the National Security Act lose its normative power (negative)

[2] The meaning of "foreign organizations" under the National Security Act and the criteria for the determination thereof, and whether the South Korean Head Office of the South Korean Unification Association constitutes "foreign organizations" under the National Security Act (affirmative)

[3] Whether the crime of escape under the National Security Act can be applied to the act of visiting North Korea upon obtaining a certificate of visit from the Minister of Unification (negative in principle)

[4] The meaning and method of determining the act of assistance under the National Security Act

[5] Whether the crime of meeting under the National Security Act is established in the event that the president, etc. of the South Korean Unification Association, a member of the anti-government organization, has met with the president, etc. of the North Korean headquarters of the South Korean Unification Association, who is a member of the anti-government organization, or a group of the South Korean Unification Association or a group, discussed the amendment of the principles of lectures and regulations at that place and revised the above (affirmative)

[1] At the same time, North Korea is a partner of dialogue and cooperation for the peaceful unification of South and North Korea, and at the same time is taking the routes of hostile unification, and has the character of anti-government organization which takes measures to reverse our liberal democracy system, and cannot be deemed to have lost the normative power of the National Security Act which regulates anti-government organizations, etc.

[2] [Majority Opinion] (A) The so-called “foreign organization” under Article 7(1) and (3) of the National Security Act refers to a continuous and independent combination formed by a specific number of people for the purpose of praiseing, encouraging, promoting, or aiding and abetting the activities of an anti-government organization or its members or those who were ordered to do so, or promoting and inciting the national defense, while knowing that such act may endanger the existence and security of the State or democratic fundamental order. In interpreting the elements of the crime of forming and joining an anti-state organization, the purpose of the National Security Act (Article 1(1) of the same Act) and “It shall be limited to the minimum extent necessary to achieve the purpose of this Act in interpreting and applying this Act, and the interpretation and application of the National Security Act should not be permitted in a case where an organization actually interferes with the fundamental order of an anti-government organization, such as the basic principles of interpretation and application of the National Security Act and the fundamental order of the people’s fundamental human rights, and should be construed as a strict interpretation and interpretation of the provision of the National Security Act.

(B) Even though the South Korean Head Office of the South Korean Unification (hereinafter “the South Korean Head Office”) proposed a movement to amend the principles and regulations in order to escape from the face of the face and strengthen the public nature, the above organization was at least engaged in the praise, encouraging, promoting, or aiding and abetting the activities of anti-government organizations or their members or those who received their orders at the time of joining the Defendant, and the actual activities are also likely to pose substantial harm to the nation’s existence and security and democratic fundamental order. Thus, it is sufficient to view the above organization as an anti-government organization.

[Concurring Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn] (A) In a case where the National Security Act applies, where there is a risk of substantial harm to the national existence and security and the liberal democratic fundamental order, it is reasonable to say that the organization causes clear and present and concrete danger to the existence and security of the State and the liberal democratic basic order. Specifically, the organization’s purpose, purpose, purpose, direction of activities, etc. of the organization which is inferred by its bylaws, lectures, organizations, and the organization’s intent and extra-party activities expressed outside its resolution, etc., cannot be determined as a dual organization under the National Security Act solely on the ground that the organization’s intent cannot be compatible with the basic democratic order, and the organization’s decision should be recognized as an independent organization only in a way and method of realizing the will of the organization to be inferred, such as an armed riot, etc.

(B) In light of the activities and methods of expressing opinions of the South Korean Head Office of the South Korean Unification Korea, it cannot be deemed that the South Korean Head Office of the South Korean Unification Korea denied the existence of the State and achieved its purpose in a way that does not allow the free democratic basic order. Thus, it cannot be said that it constitutes a foreign organization with a clear and present danger and harm to the existence and security of the State and democratic basic order.

[3] [Majority Opinion] Separate from the cases of inter-Korean exchange and cooperation under Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005), the issue of whether an act of visit between South and North Korea is “reasonable” is merely an act for inter-Korean exchange and cooperation, as stated in the former Act, shall be determined objectively by taking into account the circumstances leading up to the visit, whether the visit was issued under the conditions as prescribed by Article 9(1) of the same Act, whether the specific purpose of visit constitutes trade and cooperative projects prescribed by the same Act, whether the visit was actually conducted by the person who wishes to visit North Korea, and whether the visit was permitted to be issued a certificate of visit from the person who wishes to visit North Korea, for the same purpose as that of North Korea’s inter-Korean exchange and cooperation. Thus, the Minister of Unification’s receipt of the certificate of visit is justifiable and, in principle, not only for the reason that the visit was permitted by the person’s visit to North Korea for other purposes, but also for the purpose of the visit.

[Concurring Opinion by Justice Jeon Soo-ahn] If a person who wants to visit North Korea visited North Korea by obtaining a certificate of visit from the Minister of Unification, the act of going to North Korea from South Korea through such procedure does not constitute an element of escape under the National Security Act, and in any case, it shall not be punished as an escape under the National Security Act. This is the same as in the case where the majority opinion considers that the act constitutes the crime of escape under the National Security Act according to the purpose of visit, where a person who clearly expresses his intention to endanger the existence and security of the Republic of Korea or democratic fundamental order of escape, constitutes the crime of escape under the National Security Act, such as "where a person who has an obvious intention to commit an act endangering the existence and security of the Republic of Korea, obtains a certificate of visit from the Republic of Korea, and conducts an act different from the purpose of visit as stated in the certificate of visit, and whether such act constitutes an act of escape under the former Inter-Korea Exchange and Cooperation Act (amended by Act No. 7539, May 31, 2005).

[4] [Majority Opinion] (A) The so-called "crime of acting in concert with an anti-government organization, etc." under Article 7 (1) of the National Security Act refers to an act of asserting the same content as, or complying with, the anti-government organization's propaganda, inciting, instigating, and activities of an anti-government organization. The principle of interpreting that the National Security Act should be applied restrictively only when there is an obvious danger that may actually harm the existence and security of the State or democratic fundamental order, applies to the crime of acting in concert with an anti-government organization. Therefore, the act of concert prohibited under Article 7 (1) of the National Security Act should reach the extent of being assessed as "ing, encouraging, and promoting the activities of an anti-government organization, etc." to the extent of being evaluated, and if an assembly including the purpose of praise, encouraging, and promoting part of the activities of an anti-government organization is merely present, and thus it is difficult to conclude that such act does not pose any substantial danger and harm to the national existence and security or democratic basic order.

(B) Even if an assembly, which was held in front of the third charter of the unification of North Korea, was present at a ceremony of the unification of the Republic of Korea, which was held in front of the sculptures symbolizing the third charter of North Korea, and the North Korean authority’s speech was seen to have led to an external expression of the intent to actively respond to and join the activities of anti-government organizations, etc., it is insufficient to deem that such act alone led to an external expression of the intention to actively respond to and join the activities of anti-government organizations, etc., and therefore, it cannot be deemed that the act was engaged in the activities of anti-government organizations

[Concurring Opinion by Justice Ko Hyun-chul, Justice Kim Hwang-sik, and Justice Ahn Dai-hee] (A) However, in determining whether participating in an assembly and doing acts such as gambling for another person, constitutes an offense of assistance with an anti-government organization, etc., it is reasonable to view that the participating person constitutes the crime of assistance with an anti-government organization. In light of the circumstances surrounding the assembly's participation in the assembly, the situation surrounding the activities before and after the assembly, the conduct before and after the assembly, the nature, process of the assembly, and the situation surrounding the meeting, the speech at the assembly, and the specific meaning of the speech at the assembly, if it is possible to evaluate that the participating person's participation in the assembly and the action present at the meeting are favorable to and against the activities of an anti-government organization, etc., and it is sufficient to view that the act constitutes an assistance with an anti-government organization, such as an anti-government organization, etc., as stated in Article 7 (1) of the National Security Act, and that the three-party uniform charter of North Korea, which is an anti-government organization.

[5] [Majority Opinion] (A) The crime of meeting and communication under Article 8(1) of the National Security Act is established when, with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, contact with members of an anti-government organization or persons under its order by means of meeting, communication, or other means, and the act of meeting and communication is established when there is an obvious risk of substantial harm to the national existence and security or democratic fundamental order.

(B) The issuance of a certificate of visit to North Korea by the Minister of Unification is merely a permit to visit North Korea itself, and it does not mean that all specific and individual acts during the visit to North Korea are permitted or justifiable. Thus, whether an act of meeting with members of anti-government organizations, etc. during the visit to North Korea is obviously dangerous to the existence and security of the Republic of Korea or democratic fundamental order should be determined separately for each act. Therefore, even if the visit to North Korea after obtaining a certificate of visit to North Korea, it cannot be deemed that the act of meeting with members of anti-government organizations, etc. during the opportunity is within the scope recognized as justifiable as an act for the purpose of inter-Korean exchange and cooperation. Rather, if it is recognized that there is an obvious risk that may pose substantial harm to the existence

(C) The meeting of the early unification Korea violates the conditions for issuing a certificate of visit to North Korea prohibiting political discussions, and the lectures and rules of the early unification Korea, which are discussed by the council, etc., were aimed at embodying the activities of the North Korea and the North Korean co-ordination headquarters of the early unification Korea, which are dual organizations in line with the routes of the early unification and socialist revolution of the Korean Peninsula, which are based on the routes of the early unification of the Korean Peninsula, and the routes of the early unification Korea. Although the amendment was discussed to alleviate the previous contents, it still has been done as part of the amendment to the purport that the activities of the North Korean co-operation and the North Korean co-ordination of the early unification Korea are not likely to pose a substantial threat to the existence and security of the nation, as it is sufficient to view that the activities of the early unification Korea and the North Korean co-operation with the aim of pursuing the basic order of the early unification of the early unification Korea and strengthening the public nature while maintaining the basic routes of the early unification Korea and strengthening the socialism.

[Concurring Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn] Even though a certain organization constitutes a dual organization under the National Security Act, and even if a member of an organization meets with a member of an anti-government organization or a person under the order of an anti-government organization, if all of its meetings are not likely to cause substantial harm and harm to the national existence and security and democratic fundamental order, and if it is difficult to recognize a clear and present harm and danger to the national existence and security or democratic fundamental order in the course of its meeting or the contents discussed at the meeting’s meeting, the meeting cannot be punished as a crime of meeting under the National Security Act. Although the defendant’s act of meeting of the anti-government unification Korea constitutes an independent meeting with a member of an anti-government organization, it shall be applied under Article 8(1) of the National Security Act, and it is difficult to say that it constitutes a case where it is obvious and present danger and harm to the national existence and security or democratic fundamental order.

[1] Article 2 of the National Security Act / [2] Article 7 (1) and (3) of the National Security Act / [3] Articles 3 and 9 (1) of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005), Article 9 (4) of the former Enforcement Decree of the Inter-Korean Exchange and Cooperation Act (amended by Presidential Decree No. 19143 of Nov. 30, 2005), Article 6 (2) of the National Security Act / [4] Article 7 (1) of the National Security Act / [5] Article 8 (1) of the National Security Act

[1] Supreme Court Decision 99Do4027 delivered on February 9, 1993 (Gong1993Sang, 1025), Supreme Court Decision 99Do4027 delivered on December 28, 199 (Gong2000Sang, 429), Supreme Court Decision 2004Do3212 delivered on August 30, 2004 (Gong2004Ha, 1627) / [2] Supreme Court Decision 99Do2437 delivered on October 8, 199 (Gong199Ha, 2370), Supreme Court Decision 200Do987 delivered on July 9, 200, 209 (Gong204Ha, 13779) / [3] Supreme Court Decision 2009Do9399 delivered on September 19, 193; 209Do93979 delivered on September 29, 1995

Defendant

Defendant

Attorney Cha Jong-ho

Seoul High Court Decision 2002No645 delivered on January 17, 2003

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the ground of appeal regarding North Korea's anti-government organization

On September 17, 1991, the Republic of Korea and North Korea joined the United Nations simultaneously, the Framework Agreement between South and North Korea was adopted on December 13, 199, and the South and North Korea was announced on June 15, 200 when the South and North Korean summit was held and the Joint Declaration between South and North Korea was announced on June 15, 200, and there was active exchanges and cooperation between South and North Korea as well as between South and North Korea and South Korea in various levels of political, economic, social, cultural, academic, sports, etc. As pointed out in the grounds of appeal. Such a series of development of inter-Korean relations has the constitutional basis to the extent that it is to establish the national goal of peaceful unification policies and to the extent that it is to implement such policies.

However, the fact that North Korea has joined the United Nations in the name of the Democratic People's Republic of Korea is that it cannot be deemed that there has been a national approval among other members who have joined the United Nations, as a matter of course, is international political practice and a common position in international law. Moreover, only the current South-North Korean agreements, the South-North Korean summits, the South-North Korean Joint Declaration, etc., and the current South-North Korean summits and economic cooperation, etc. cannot be treated as an independent country independently from international law and domestic law. Legal relations between South and North Korea shall be determined in accordance with the Constitution and laws of Korea, and North Korea shall not be regarded as a separate independent country that is equal to Korea in all areas, such as politics, economy, law, military, culture, etc. The relationship between South and North Korea and North Korea is within a certain scope (see Article 3 (1) of the Development of Inter-Korean Relations Act), and South Korea should not be interpreted and applied in the direction of pursuing peaceful unification and peaceful unification of the Korean Peninsula in accordance with the principle of autonomy, peace and democracy (see Article 2 (1).

The principle of international peace and peaceful unification, which is the fundamental order of free democracy, under Articles 4 and 5 of the Constitution of the Republic of Korea, is premised on the fact that the Republic of Korea’s Constitution does not harm the Daejeon of the Constitution of the Republic of Korea, which is the fundamental order of free democracy. However, North Korea is not in harmony with the basic principles of our Constitution at the present point of time, and its final purpose is to build a socialist and decentralization society through the Protocol of the Track Line, which is hostile to the Constitution, and for the purpose of rational unification, there is no express declaration of policies that actively support the democratization of South Korea’s society and anti-domination, and there is no indication of modification in the course of carrying out its policies. Accordingly, unless North Korea shows any apparent change that this would not pose a threat to our free democracy system in accordance with the development of inter-Korean relations, it does not infringe on the fundamental freedom and freedom of conscience of the State and fundamental rights of the State to secure the safety of citizens by regulating activities detrimental to the national security, and thus, it cannot be reasonably construed as violating the fundamental provisions of the National Security Act.

Therefore, the previous Supreme Court has expressed its opinion on the National Security Act and North Korea, namely, despite the changes in dialogue and cooperation for the peaceful unification of the fatherland or in the relationship between South and North Korea at the same time, North Korea has the character of anti-government organization, which takes the responsibility for the unification routes of the enemyland, and it cannot be deemed that the normative power of the National Security Act that regulates anti-government organizations, etc. has been lost (see, e.g., Supreme Court Decisions 92Do1211, Aug. 14, 1992; 9Do4027, Dec. 28, 1999; 2003Do604, May 13, 2003; 201Do4328, Sept. 23, 2003).

Therefore, the court below's determination that North Korea is not an anti-government organization or the National Security Act cannot be deemed to have lost its normative power is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to anti-government organization under Article 2 of the National Security Act.

2. As to the grounds of appeal relating to the dual organization of the South Korean Head Office of the South Korean Unification Korea

The so-called "foreign organization" under Article 7 (1) and (3) of the National Security Act refers to a continuous and independent combination formed by a specific number of people with the intention of praiseing, encouraging, promoting, or aiding and abetting the activities of anti-government organizations or their members or those who received their order (hereinafter referred to as "an anti-government organization, etc.") with the knowledge of the fact that such activities may endanger the existence and security of the State or democratic fundamental order.

The purpose of the National Security Act (Article 1(1) of the same Act) and the provision that “in interpreting and applying this Act, it shall be limited to the minimum extent necessary to achieve the purpose of this Act, and shall not be extended or extended to the extent that the fundamental human rights of the people guaranteed by the Constitution are not unfairly restricted” should be strictly limited and interpreted in light of the basic principles of interpretation and application of the National Security Act (Article 1(2) of the same Act), the basic principles of the principle of no punishment without law prohibiting analogical interpretation or expanded interpretation (see Supreme Court Decisions 9Do2437, Oct. 8, 199; 200Do987, Jul. 9, 2004, etc.).

However, even if a group does not take place on the face of an organization for the purpose of praiseing, encouraging, promoting, or aiding and abetting the activities of anti-government organizations, etc., if the organization’s contents, contents of its activities, and connection through communication with anti-government organizations, etc., in light of the organization’s contents, contents of its activities, and degree of connection with the intent of an anti-government organization, the organization should be deemed as a dual organization, if it is deemed that the organization actually took the above activities as its purpose and that the organization has a risk of substantial harm to the national existence and security or

In light of the facts acknowledged by the first instance court and the court below, ① the proposal of the "The World War and the Korean National Assembly for the peaceful unification and unification" in 1988 was adopted by the North Korean Relations and Unification Committee, ④ the first Korean National Assembly was held on August 15, 1990, the first Korean National Assembly was held on November 20, 190 (hereinafter referred to as the "National Assembly"), and the North Korean National Assembly was established on the 1,000 North Korean National Assembly's organization of the North Korean National Assembly and the second Korean National Assembly's organization of the North Korean National Assembly and the second Korean National Assembly's organization of the North Korean National Assembly, and the second Korean National Assembly's organization of the North Korean National Assembly's organization and the second Korean National Assembly's organization of the North Korean National Assembly and the second Korean National Assembly's organization of the North Korean National Assembly and the second Korean National Assembly's organization of the North Korean National Assembly, and the North Korean National Assembly's assertion that the North Korean National Assembly's amendment of the North Korean Constitution was made on February 25,

In full view of these circumstances, even though the South Korean government headquarters had been moving to amend the principles and regulations in order to escape from the surface aptitude and strengthen the public nature, it is justifiable for the court below to determine the South Korean government headquarters as a pro-enemy organization in the purport that at least at the time when the defendant joined the Republic of Korea, he/she took an act of praiseing, encouraging, promoting, promoting, or aiding and abetting the activities of anti-government organizations, members of the South Korean government or those of the members of the members of the organization or those of the members of the organization, and that it is sufficient to deem that the actual activities are also an anti-government organization with the risk of causing substantial harm to the national existence and security and democratic fundamental order. There is no error of law such as misunderstanding of legal principles as to the recognition of pro-Japanese organization, as otherwise alleged in the grounds of appeal.

3. As to the grounds of appeal on whether the crime of escape from visit to North Korea of this case is established

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 instant visit (hereinafter the same shall apply) 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 coming to and going to and going to, trade and cooperation with, and provision of telecommunications services with, South Korea and North Korea.” This provision of the former Inter-Korean Exchange and Cooperation Act includes the National Security Act in other Acts, which shall take precedence over the former Inter-Korean Exchange and Cooperation Act (see Supreme Court Decisions 90Do1613, Sep. 25, 199; 92Do1815, Feb. 9, 1993, etc.

In addition, whether the inter-Korean activities are "for the purpose of inter-Korean exchange and cooperation" should be objectively determined by taking into account the circumstances leading up to the visit between North Korea and North Korea; whether the visit certificate was issued as prescribed by Article 9(1) of the same Act; whether the specific purpose of the visit is trade and cooperative activity as prescribed by the same Act; whether the visiter in North Korea actually carried out such trade and cooperative activity; and whether the visiter in North Korea actually carried out such trade and cooperative activity before and after the visit; etc.

Upon receipt of an application for a certificate of visit from a person who wishes to visit North Korea, the Minister of Unification shall examine specifically whether the purpose of the visit is permitted in the same Act, and take into account all positive and unlawful aspects as a whole, which may arise as a result of permitting the visit. If it is determined that allowing the person to visit North Korea to act for the purpose of the visit is helpful for inter-Korean exchange and cooperation, the Minister of Unification shall issue a certificate of visit to North Korea with the purpose of the visit stated therein (Article 9(4) of the Enforcement Decree of the same Act). Therefore, in cases where the Minister of Unification issued a certificate of visit to North Korea by a person who wants to visit North Korea for the purpose of the visit specified in the certificate of visit

Of course, in exceptional cases where a person with an obvious intention to commit an act that may endanger the existence and security of the Republic of Korea or democratic fundamental order has obtained a North Korea visiting certificate by deceiving the purpose of visit and has committed an act that is not in accordance with the purpose of visit indicated in the North Korea visiting certificate, the purpose of visit stated in the North Korea visiting certificate is merely merely an outer form and shape of obtaining a visiting certificate, and thus, it cannot be deemed justifiable as an act aimed at the inter-Korean exchange and cooperation. Thus, if the visiting act satisfies the elements of escape as stipulated in the National Security Act, it shall not be exempted from the liability for the crime.

However, if it is acknowledged without permission in such exceptional cases, the purpose of the Act to facilitate inter-Korean exchange and cooperation or the purpose of the policy decision to allow visits to North Korea by the Minister of Unification may be somewhat denied. Therefore, even if a visit by a person who visits North Korea actually engages in an act that conforms to the purpose of the visit permitted by the Minister of Unification, and an act that is not legally permitted by law by using the opportunity of visit, it cannot be evaluated separately by dividing the legitimacy of one act of visit to North Korea by the purpose of visit. Therefore, unless it can be deemed that a visit by a person who visits North Korea was made to conduct any other act that is not legally permissible by law, the purpose of the visit by the person who visits North Korea was merely a mere Gu office for the purpose of obtaining a certificate of visit to North Korea, the act of visiting North Korea itself shall be deemed justifiable, and apart from what is charged with a crime under the relevant penal provision regarding other acts, the act of visiting North Korea shall not be punished as a whole as an act for inter-Korean exchange and cooperation under the National Security Act.

Examining the facts acknowledged by the court below and the court below, based on these legal principles, the "National Unification Festival 2001" held from August 15, 2001 to the 16th day of the national unification axis (hereinafter "National Unification Festival") constitutes a single joint event between South and North Korea, which is the first and the highest size of the first group and the first group of South and North Korea, and constitutes a cooperative project jointly conducted by South and North Korean residents (Article 2 subparagraph 4) under the same Act. The defendant, as a regional representative of "the realization of the Joint Declaration of 15 South and North Korea and the unification of the Korean Peninsula for the peace of the Korean Peninsula," issued a certificate of visit to North Korea to the Minister of Unification to participate before the national unification axis, and participated in the process prescribed by the same Act, such as issuing a certificate of visit to North Korea before the national unification axis, which is more likely to assist the South and North Korean government to understand the changes in the personnel relations between the defendant and the people visiting North Korea before the national unification axis.

In light of the above facts in light of the legal principles as seen earlier, the defendant applied for a certificate of visit to the Minister of Unification for the purpose of participation in the national unification festival, and participated in the actual national unification festival issued by the Minister of Unification with a certificate of visit issued by him, taking into account various circumstances as above, and the act of visiting North Korea for the purpose of the visit is justifiable. Although the above opportunity to visit North Korea was discussed with the amendment of the law and regulations, the person visiting North Korea was merely visiting North Korea for the purpose of only visiting the person visiting North Korea on the part of the day, and the purpose of visiting North Korea for the purpose of joining the national unification festival festival is merely just the name room for the purpose of obtaining the certificate of visit to North Korea. Thus, the purpose of visiting North Korea for the purpose of joining the national unification festival shall not be deemed to have been the mere mere mere fact of the name room for the purpose of obtaining the certificate of visit to North Korea, apart from asking for the criminal liability for the act of visiting North Korea on the part of the defendant's visit and cooperation with North Korea, it shall not be punished as an act of escape under the National Security Act.

Nevertheless, the court below found the defendant guilty by applying Article 6 (2) of the National Security Act to the facts charged as to escape due to the defendant's visit to North Korea. In so doing, the court below erred by misapprehending the legal principles on the requirements that can be preferentially applied to the former Inter-Korean Exchange and Cooperation Act, and the defendant's ground of appeal pointing this out has merit.

4. As to the grounds of appeal relating to whether the act of attending the instant assembly constitutes a crime of assistance

Article 7(1) of the National Security Act provides that "an act of assistance" as referred to in the so-called "an act of assistance with an anti-government organization, etc." refers to an act of responding to and joining the activities of an anti-government organization, etc. by asserting or complying with such an act identical with the propaganda, inciting, and activities of an anti-government organization (Supreme Court Decisions 99Do2317 delivered on September 3, 199; 2001Do4328 delivered on September 23, 2003).

In addition, the interpretation principle that the National Security Act shall be limited to cases where there is an obvious danger that may actually harm the existence and security of the State or democratic fundamental order, applies to the crime of acting in concert with an anti-government organization, etc. Therefore, the act of concert prohibited under Article 7(1) of the National Security Act should reach the level to which he/she actively expresses his/her intent to respond to and join the activities of an anti-government organization, etc. to the extent that it can be evaluated as the act of praise, encouraging, and promoting the activities of an anti-government organization, etc., and where it is difficult to deem that there is an obvious danger that the act of concert prohibited under Article 7(1) of the National Security Act may actually harm the existence and security of the State or democratic basic order, it shall not be concluded that the act of concert committed an anti-government organization under

According to the facts established by the court below and the first instance court maintained, the defendant, with approximately 150 persons among the North Korean visiting delegations of this case, was present at the opening of the national unification festival held in front of the third anniversary of the Charter of Korea, which advocates the North Korean unification route, with the conditions to issue the North Korean visiting delegation of this case, and was present at the opening of the national unification festival held in front of the third anniversary of the Charter of Korea, which advocates the North Korean unification route, and the North Korean personnel appeared to have a response, such as hearing a single opening declaration and a congratulatory campaign speech and drinking. During the opening declaration and the congratulatory campaign speech, the defendant emphasized that the national independence and the implementation of the North Korean national defense chairman of the North Korean National Defense Council was emphasized.

However, since the national unification festival was a large-scale joint event that received a certificate of visit from the government to participate in it, it cannot be readily concluded that the dogmatic ceremony itself held to start and accumulate it was solely composed of the praise, rubber, and promotion of the activities of anti-government organizations, etc. Moreover, there is no circumstance to deem that North Korea, including the Defendant, was punished by publicity activities, such as the fact that North Korea supported the three charter of unification of North Korea and supported the three charter of unification of North Korea.

Examining these circumstances in light of the legal principles as seen earlier, even though the Defendant participated in an open meeting for the national unification contest, which was held in front of the third charter of the unification of the Republic of Korea, and appeared to have a response to the North Korean authority’s speech at that place, such act alone is insufficient to deem that the act itself constitutes an external expression of the intent to actively respond to and join the activities of anti-government organizations, etc., and therefore, it cannot be deemed that the act was committed in concert with the activities of anti-government organizations, etc. to the extent that there is an obvious risk of substantial harm to the national existence and security of the State or democratic fundamental order.

Nevertheless, the court below erred by misapprehending the legal principles on the interpretation of Article 7 (1) of the National Security Act, which found the defendant guilty of attending the assembly of this case as guilty. The defendant's appeal pointing this out has merit.

5. As to the grounds of appeal on whether the crime of holding a meeting of the pan-government association of this case is established

The crime of meeting and communication as prescribed in Article 8 (1) of the National Security Act shall be committed with a member of an anti-government organization or a person under its order, by meeting, communication, or any other means, knowing that it may endanger the existence and security of the State or democratic fundamental order. In this case, the act of meeting, communication, etc. is established when there is an obvious danger that such assembly, communication, etc. may pose a substantial threat to the national existence

On the other hand, the Minister of Unification's issuance of a certificate of visit to North Korea is merely a permit to visit North Korea itself, and it does not purport to allow all specific and individual acts during the visit to North Korea, or to grant legitimacy. Thus, whether an act of meeting with anti-government organizations, etc. during the visit to North Korea, such as members of the Republic of Korea, is obviously dangerous to the existence and security of the Republic of Korea or democratic fundamental order, should be judged separately for each act. Therefore, even if the visit to North Korea upon obtaining a certificate of visit to North Korea, it cannot be deemed that the act of meeting with anti-government organizations, etc. conducted during the opportunity, is within the scope recognized as justifiable as an act for the purpose of inter-Korean exchange and cooperation. Rather, if it is deemed that

The Republic of Korea's Republic of Korea, in which the Defendant was working as a member of the Vice-Speaker, has maintained a system of regular contact with the North Korea and the North Korea's North Korea's Republic of Korea and the North Korea's Republic of Korea and the North Korea's Republic of Korea whose activities are in line with the routes of the Korean Peninsula, including the number of foreign forces consistently asserting for the hostile unification and the socialist revolution of the Korean Peninsula, and the removal of nuclear weapons and the mutual reduction of military expenses, as seen above, have been engaged in activities as a dual organization threatening to threaten the nation's existence and security and free democratic basic order by repeating the arguments raised as a means of an international propaganda for the hostile unification. The strong order of the North Korea's Republic of Korea before the amendment on September 201, included the number of foreign forces, the removal of military weapons, the reduction of military expenses, etc.

In addition, according to the facts established by the court below and the first instance court maintained, the South Korean Civil Association established the proposal for the amendment of the North Korean Civil Association and the North Korean Civil Association to contact the North Korean Civil Association and the North Korean Headquarters through communications and facsimile on February 201, 201, and expand and develop a campaign for the construction of the federal unification bureau, and it does not change the basic route of the public-private partnership, but it is decided to discuss the amendment of the Korean Civil Association's principles and regulations externally to promote the unity of the South Korean Civil Association and popularity, and to deliberate on it at the Korean National Assembly held. For this purpose, it was decided on August 201, 200 that the officers of the South Korean Civil Association, including the defendant, were in violation of the North Korean Civil Association's duty to visit North Korea on several occasions before the visit of the North Korean government, and that the North Korean Civil Association's amendment of the North Korean Civil Association and the North Korean Civil Association's agreement to obtain the terms and conditions of the amendment of the North Korean Civil Association and the North Korean Association's's agreement to introduce.

In full view of these circumstances, the defendant's meeting held by the court below, which held as a member of the anti-government organization, after visiting North Korea of this case, violates the conditions for issuing the certificate of visit to North Korea of this case prohibiting political discussions. The Ordinance of the Republic of Korea and the Covenant discussed by the council, etc. were aimed at embodying the activities of the anti-government and the co-government headquarters, which are dual organizations in line with the routes of the Korean Peninsula, with the aim of hostile unification and socialist revolutions. Although the amendment was discussed to alleviate the previous contents, it still has been made as part of the pre-existing basic order of our free democracy and the realization of the hostile unification and socialist system, since it still has been made as part of the pre-existing way to advocate the legal nature and enhance the publicness of the South Korean headquarters, it is sufficient to view that the act of the government's visit to the North Korea of this case constitutes the fundamental order of free democracy and security, and thus, it does not pose a substantial threat to the existence and security of the nation's existence and security at the time of such act.

In the same purport, the court below is just in recognizing the defendant's act of meeting the North Korean citizen's personnel in North Korea as a crime of meeting under the National Security Act, and there is no error in the misapprehension of legal principles as to the crime of meeting under the National Security Act.

6. Conclusion

Therefore, the judgment of the court below which found the defendant guilty of the violation of the National Security Act due to visit to North Korea and the participation in the assembly should be reversed. Since the court below recognized the remaining crimes as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, the whole judgment of the court below is reversed, and the case shall be remanded to the court below for a new trial and determination, and it is so decided as per Disposition.

Concurring Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn with respect to the determination of the above 2. Concurring Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn, with respect to the determination of the above 3. 4. Concurring Opinion by Justice Shin Hyun-chul, Justice Kim Hwang-sik, and Justice Ahn Dai-hee with respect to the determination of the above 5.

7. Separate opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn as to the judgment under the above 2.

After recognizing the facts as stated in its reasoning, the majority opinion deemed that the South-North Korean government headquarters was a so-called pro rata organization under the National Security Act, but I cannot agree with the majority opinion for the following reasons.

Article 1(1) of the National Security Act provides that the purpose of the National Security Act is to secure national security and the lives and freedom of citizens by regulating anti-state activities which may endanger the national security, and Article 1(2) of the same Act provides that the interpretation of this Act shall be limited to the minimum necessary to achieve the purpose and shall not be extended or interpreted, or the basic human rights of the people guaranteed by the Constitution are not unfairly restricted. In addition, as seen in the interpretation and application of the pertinent provision of the National Security Act, as seen in various provisions, including Article 7(1) of the National Security Act, “A person who is aware of the fact that the existence and security of the State or democratic fundamental order is prejudicial to the fact that the act may endanger the existence and security of the State or democratic fundamental order,” the above provision of the National Security Act is limited to cases where the act is obviously dangerous to the existence and security of the State or substantial danger and harm to the fundamental order of the free democracy, and it is like the majority opinion and the majority opinion.

Furthermore, when determining whether such an act constitutes a case where there is a clear risk that may pose substantial harm to the national existence and security or democratic fundamental order, the fundamental spirit of the free democracy system should be protected to include the opposing parties, i.e., the outcome of mutual debate and competition, and seek the development of the system through the process, i.e., efforts to protect the fundamental spirit of the free democracy system. In addition, North Korea, which is an anti-government organization, should not be punished for the reason that there was an idea that denies the existence and security of the State or democratic fundamental order with respect to the area of the cause of the influence human beings, such as the number of iron in the US, the Han US military training, mutual axis, and the conclusion of the inter-Korean peace agreement. However, in itself, the assertion should not be regarded as a content that threatens the national existence and security and free democratic basic order, the development process and domestic situation of our society cannot be said to be a conflict in our society, and thus, the direction of social change, analysis of the fundamental rights and interests of the people, and the exercise of public authority or its unlawful behavior.

In light of the foregoing, determination as to whether there is an obvious danger or harm to the existence and security of the State or democratic fundamental order should be made as follows. First, if the contents of a person’s assertion or action are not contrary to the existence and security of the State or the fundamental order of free democracy (e.g., the withdrawal of the United States Armed Forces, the abolition of the National Security Act, the unification of the federal system, the conclusion of the peaceful agreement), and the assertion or opinion merely does not recognize the substantial harm or harm as alleged by anti-government organizations, such as North Korea. Furthermore, even if the opinion or opinion of the person is inconsistent with the fundamental order of free democracy (e.g., pathism, the country of military administration, fliberian Germany, and industrialism), it is reasonable to punish the person’s opinion or thought as being inconsistent with the fundamental order of free democracy and law by threatening or impairing the independence of the Republic of Korea, or by harming the territory, to destroy and remove the fundamental order of free democracy and the fundamental order of free democracy and the fundamental order of free democracy and security system, 20.

Furthermore, the following points should be noted in interpreting the composition of the so-called dual organization or joining the organization.

There is no need to conclude that the crime of forming and joining a dual-class organization under the National Security Act is limited to the freedom of association as stipulated by the Constitution as a fundamental right of the people. In human life, any state intervention may not be permitted in the decision-making of one’s own will according to conscience, and it is natural human nature to exchange opinions, to deliver them to other persons, and to appeal for support from one’s own opinion. Furthermore, through the process of forming and expressing collective opinions, the society reflects its own will in the community, and based on this process, the majority of the members of the society will control that society. On the other hand, a democratic society in which power belongs to all members of the society is necessarily premised on many opposing parts, and if the minority’s will cannot be expressed in the process of forming the community’s will and power, it is a denial of democracy that can not be used as a suppression or suppression by a majority. The basic principle of democracy is sufficiently considered in the formation and joining of the constituent elements of a democratic organization.

As a result, a group’s intent, such as the rules, lectures, organization, and the organization’s organization of officers, the organization’s formation of officers, internal resolutions, and the direction of activities, etc., cannot be determined as a dual organization under the National Security Act solely based on the fact that the group’s purpose, objective, direction of activities, etc. cannot be compatible with the basic free democracy order. The organization should be recognized as an dual organization only when it is determined by the means and method of realizing the group’s will of an organization to be inferred as such.

(4) In light of such legal principles, if the South-North Korea National Security Association is a non-permanent organization under Article 7(3) of the National Security Act, and if the South-North Korea National Security Association is a non-permanent organization under this Act, the South-North Korea National Headquarters only announced the purport of the South Korea's establishment of a democratic assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-permanent assembly and/or non-governmental organization's general order.

For the above reasons, I cannot agree with the majority opinion, and I think that the Supreme Court Decision 96Do2673 delivered on December 23, 1996 and Supreme Court Decision 96Do2696 delivered on May 16, 197, which held that the Republic of Korea is a pro rata organization in light of the above legal principles, should be modified to the extent that it conflicts with the above legal principles.

As a result, the judgment of the court below which held the headquarters of the Republic of Korea as a dual organization is erroneous in the misunderstanding of legal principles as to the dual organization, the grounds for appeal pointing this out should be accepted, and the majority opinion argues that it is different from this opinion.

8. Concurring Opinion by Justice Jeon Soo-ahn as to the judgment under the above 3.3.

A. The majority opinion argues that in case where a person who wants to visit North Korea visits North Korea upon obtaining a certificate of visit from the Minister of Unification, if he/she performs the purpose of visit as stated in the certificate of visit, such visit shall, in principle, be punished as an escape under the National Security Act, on the ground that it is an act for inter-Korean exchange and cooperation within the scope recognized as justifiable, as an act for escape under the National Security Act. However, in exceptional cases as shown in the above,

However, we cannot agree with the above majority opinion, and if a person who wants to visit North Korea visits North Korea with a certificate of visit issued by the Minister of Unification, the act of going to North Korea from South Korea through proper procedures does not constitute an element of escape under the National Security Act, and in any case, it cannot be punished as an escape under the National Security Act.

B. All citizens have the freedom of residence and the freedom of access to the Korean Peninsula and its attached islands without any restriction. However, the freedom of access to the Korean Peninsula and its attached islands is restricted by Article 6 of the National Security Act based on Article 37(2) of the Constitution, which is the right of anti-government organizations, and the right of access to the area under the control of North Korea is restricted by Article 6 of the National Security Act. Thus, if the act of escapeing South Korea to North Korea meets the elements of the crime of escape under Article 6 of the National Security Act, barring any special circumstance, North Korea shall be punished under

Article 6 (2) of the National Security Act at issue as to whether to apply the above provision in this case provides that "any person who has escaped or escaped to receive an order from, or to consult with, an anti-government organization or a member thereof shall be punished by death penalty or imprisonment for not less than five years," and does not provide for the concept of escape. Thus, the meaning of escape under the above provision shall be interpreted in accordance with the ordinary meaning and usage of language, and the principle of strict interpretation in accordance with the principle of no punishment without law shall be applied, and as a matter of course, it shall be limited to the minimum application necessary to achieve the legislative purpose of the National Security Act, and it shall not be interpreted by expanding the appearance of the concept that constitutes the elements of the National Security Act in accordance with the ordinary usage of language and the ordinary usage of the language. However, since escape under the above provision is used as a speech that it means an act that goes beyond, or come out of, the restricted environment or detention, and therefore, it is right to interpret it within the scope of the prohibition of movement under the National Security Act as a legal and institutional act.

Meanwhile, according to Articles 3, 9, 11 of the former Inter-Korean Exchange and Cooperation Act, and Articles 9 through 15, 22, and 23 of the Enforcement Decree of the same Act, South Korean residents who intend to go to North Korea apply for the issuance of a North Korean visiting certificate to the Minister of Unification, and the Minister of Unification permits the applicant to go to North Korea through the examination of entry into and departure from the place where the applicant's visit complies with the purpose of exchange after examining the applicant's visit. As such, the issuance of a certificate and the permission of entry through the examination of entry into and departure from North Korea is an act of restoring the citizen's freedom of living and movement originally owned by the citizen in its legal nature. Thus, if a person who wants to go to visit North Korea obtained the permission of entry after obtaining the North Korean visiting certificate issued by the Minister of Unification after going through the above procedure, it does not constitute the concept of escape

This is the same as in the Majority Opinion, where deeming that an act constitutes the crime of escape under the National Security Act according to the purpose of visiting North Korea, such as “a person with clear intention to commit an act that may endanger the existence and security of the Republic of Korea or democratic fundamental order, obtained a certificate of visit to North Korea by deceiving the purpose of visit, and subsequently commits an act that is in accordance with the purpose of visit as indicated in the certificate of visit.” Such an act constitutes “when issued a certificate of visit to North Korea by means of deception or other unlawful means” as prescribed by the former Inter-Korean Exchange and Cooperation Act (Article 27(1)), and is separate from the punishment under the former Inter-Korean Exchange and Cooperation Act or the corresponding provisions of the National Security Act by individually evaluating the specific acts performed during the visit to North Korea, it should not be evaluated as escape depending on whether the act is out of the purpose of hiding, and whether the Minister of Unification issued the certificate of visit to North Korea is appropriate.”

In short, the majority opinion is based on the premise that even if a certificate of visit issued by the Government of the Republic of Korea entrusted to the Minister of Unification is issued to North Korea and an act between North Korea, it may constitute escape under Article 6 of the National Security Act, as the case may be. It is understood that the act for the purpose of inter-Korean exchange and cooperation is limited to the extent that its legitimacy can be maintained, and that the act is subject to the former Inter-Korean Exchange and Cooperation Act prior to the application of the National Security Act, and thereby the crime of escape under the National Security Act is excluded. However, the concept of escape under the former Inter-Korean Exchange and Cooperation Act is unreasonably expanded and interpreted in interpreting and applying penal laws, or it is not likely to confuse the legitimacy

C. The defendant of this case was selected as the representative of the area "the realization of the Joint Declaration of 6.15 South and North Korea and the unification solidarity for peace in the Korean Peninsula", which belongs to "the promotion headquarters for the implementation of the Joint Declaration of 6.15 South and North Korea", and visited North Korea upon obtaining a North Korea visiting certificate from the Minister of Unification. Thus, the defendant's visit to North Korea does not constitute escape under the crime of escape under Article 6 (2) of the National Security Act for the reasons as seen above. Therefore, the judgment below which was punished as the crime of escape under the above escape against the defendant's visit to North Korea should be reversed since it erred by misapprehending the legal principles on escape under the National Security Act.

The majority opinion also agrees with the conclusion that the judgment of the court below should be reversed, but it is so decided as per Disposition by the assent of all participating Justices on the ground for reversal.

9. Concurring Opinion by Justice Ko Hyun-chul, Justice Kim Hwang-sik, and Justice Ahn Dai-hee as to the judgment under the above 4.

In other words, the majority opinion on the interpretation method of, or scope of, the crime of acting in concert with, an anti-government organization as provided by Article 7 (1) of the National Security Act, namely, the opinion of the majority opinion on the interpretation method of, or scope of application to, the crime of acting in concert with an anti-government organization as provided by the above Article 7 (1) should reach the degree to which the act prohibited by the above Article 7 (1) expresses his/her external intent to actively cooperate with, and join and join the activities of an anti-government organization to the extent that it can be evaluated as the act of acting in concert with, an anti-government organization as provided by the above Article 7 (1). The majority opinion agrees with the majority opinion on the fact that, in a case where it is difficult to deem that there is an obvious danger

However, in this case, we cannot agree with the part that determined that the Defendant’s act of responding to the call, such as attending the opening ceremony of the national unification festival held in front of the third anniversary of the Charter of the Republic of Korea, was insufficient to deem that he actively expressed his intention to agree with and join the activities of anti-government organizations, etc., and therefore, we cannot agree with the following reasons.

As in the instant case, in determining whether participating in an assembly and doing acts such as drinking and drinking in another person’s speech constitutes an offense of concert with the activities of an anti-government organization, it is reasonable to deem that the participating person constitutes an act of an anti-government organization under Article 7(1) of the National Security Act, in view of the following: (a) the developments leading up to participating in the assembly; (b) the activities before and after the assembly; (c) the nature of the assembly; (d) the developments leading up to and after the assembly; and (d) the situation surrounding the process of and after the assembly; and (e) the specific meaning of the speech made at the assembly, if it is possible to evaluate that the participating person’s participation in the assembly and the actions held at the assembly together with the activities of an anti-government organization, etc.

원심과 원심이 유지한 제1심이 확정한 사실관계에 따르면, ① 피고인은 위 2.항의 다수의견이 인정한 바와 같이 이적단체에 해당하는 범민련 남측본부에 당연직 부의장으로 2001년 3월 가입한 이래 2001년 8월 북한을 방문할 때까지 범민련 남측본부의 중앙위원 총회, 공동의장단회의 등에 빠짐없이 참석하면서, 범민련 남측본부가 벌이는 여러 활동에 적극 관여해 왔는데, 범민련 남측본부는 조국통일 3대 헌장을 일반 대중들에게 알리기 위해 안내 책자를 발간하였고, 2001년 2월 범민련 북측본부와 해외본부측과 특별공동의장단회의의 결의를 거쳐 이 사건 민족통일대축전 기간을 즈음하여 완공될 조국통일 3대 헌장 기념탑의 건립 지원을 위해 모형탑 제작·판매, 대돌 보내기, 건립 자재 마련을 위한 모금 활동 등 다양한 사업을 벌였으며, ② 피고인이 참석한 민족통일대축전 개막식 행사가 열린 조국통일 3대 헌장 기념탑이 상징하는, 이 조국통일 3대 헌장은 김일성 사망 후인 1997. 8. 4. 북한이 천명한 통일노선으로서 기존의 ‘조국통일 3대 원칙’, ‘전민족대단결 10대 강령’, ‘연방제 통일방안’ 3개의 통일노선을 묶어 ‘민족의 통일 강령’이라 발표한 것인데, 북한은 그들의 사회주의헌법과 조선로동당 규약에서 목표로 삼고 있는 전 한반도의 주체사상화(북한의 대남적화전략의 근본원리이기도 하다)와 공산사회 건설(프롤레타리아 독재를 지향한다)을 위한 중간 단계로서 조국통일을 남조선 혁명과 불가분의 관계를 가지는 것으로 보고 있고, 이 조국통일 3대 헌장은 이러한 북한의 적화통일노선 구축을 위한 것이며, 그 중 ‘조국통일 3대 원칙’은 “7·4 남북공동성명”에서 남북이 합의한 자주, 평화, 민족대단결과 표현만 같을 뿐, ‘자주’는 외세배격(주한미군 철수, 한미연합사 해체), ‘평화통일’은 남한 내 핵무기 철거, 팀스피리트 군사 훈련 중지를 각 선결조건으로 내세우고 있고, ‘민족대단결’은 국가보안법 철폐와 폭압 기구 해체 후 연공통일전선 형성을 의미하며, ‘전민족대단결 10대 강령’은 남한 당국을 배제하고 반정부세력들의 합법공간을 마련하고 범민족적 통일전선을 형성하기 위한 통일전선전략의 일환이고, ‘연방제 통일방안’은 그 전제조건으로 남한의 사회민주화(국가보안법·안기부 철폐, 용공정권 수립 등), 한반도 긴장완화(주한미군 철수, 북미평화협정 체결), 미국의 간섭배제(미국 정부의 한국 정부 지원 중단) 등을 내세우는 등 우리측이 수용하기 어려운 조건 등을 요구하면서 연공합작 통일기반을 조성하기 위한 위장평화술에 해당하며, ③ 정부는 이 사건 북한 방문대표단에게 북한 방문증명서를 발급하면서 위와 같은 조국통일 3대 헌장의 상징성 때문에 그 기념탑 앞에서 이루어질 행사에 남측 방문대표단이 참석할 경우 북한의 통일방안을 지지하는 것으로 평가되고 북한의 정치적 선전·선동에 이용당할 우려가 있다고 판단하여, 남측 추진본부 대표들로부터 조국통일 3대 헌장 기념탑 앞 행사에 참가하지 않겠다는 각서까지 받은 후 그 행사 불참을 조건으로 이 사건 북한 방문증명서를 발급하여 주었는데, 피고인은 이와 같은 북한 방문증명서 발급 조건을 잘 알면서도 이를 어기고 이 사건 집회에 참석하였고, ④ 피고인이 참석한 조국통일 3대 헌장 기념탑 앞 이 사건 민족통일대축전 개막식 행사에는 북한 방문대표단 중 약 150여 명이 행진하면서 ‘조국통일’을 연호하는 평양 시민들에게 손을 흔들며 답례하면서 그 행사에 참석하였고, 북한 최고인민회의 상임위원회 부위원장과 조국평화통일위원회 부위원장이 민족자주, 김정일 국방위원장의 미군철수 강조 등을 언급한 연설에 박수를 치며 호응하였으며, ⑤ 이와 같은 개막식 행사에 북한 방문증명서 발급 조건을 정면으로 어기고 남측 북한 방문대표단 중 상당수의 인원이 참가한 사실은, 남한 언론은 물론 북한 로동신문 등 당정 기관지에 대대적으로 보도되어 남북한 관계에 적지 않은 파문을 일으켰음을 알 수 있다.

In light of the above-mentioned circumstances, the defendant's role in the South Korea's headquarters, the specific meaning of North Korea's three charters established in the North Korea's three charters established in the North Korea, the awareness of the defendant's identity, the contents of the business for the establishment of the three charter commemoration towers led by the defendant, the symbol of the three charter commemoration towers led by the defendant, the violation of the conditions for issuing North Korea's certificate, the specific course of the opening ceremony, and the presence of the assembly of the North Korean mission in this case, etc., the defendant's participation in the three charter commemorative towers in the North Korea's three charter commemoration towers in this case and listens to the basic order of the North Korea's unification is sufficient, and it is not sufficient to view that the defendant's participation in the three North Korea's event in the North Korea's three charter monument and the basic order of the North Korea's unification is not passive participation in the event of the North Korea's general order, and it is clear that the defendant's participation in the North Korea's three charter and its members' participation in the North Korea's basic order.

In the same purport, the court below is just in finding the defendant's participation in the opening ceremony of this case as a crime of assistance under the National Security Act, and there is no error in the misapprehension of legal principles as to assistance under the National Security Act, as otherwise alleged in the grounds of appeal, and we express my opinion that the majority opinion is different and it is not acceptable.

10. Concurring Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn regarding the judgment

The majority opinion held that the Defendant’s act was conducted in violation of the conditions for issuing a certificate of visit to North Korea, and that it was a dual organization of the Republic of Korea, and that it was an amendment of the Gangwon-do Ordinance and the Code to seek external change in order to strengthen the public nature of the South Korean headquarters, it seems that there was an obvious risk of substantial harm to the nation’s existence and security and democratic fundamental order. However, we cannot agree with this.

Even if a certain organization constitutes a dual organization under the National Security Act, and its members meet with a member of an anti-government organization or a person ordered by an anti-government organization, all of the meetings shall not be deemed to pose a risk of substantial harm to the national existence and security and free democratic basic order, and if it is difficult to recognize a clear and present harm and danger to the national existence and security or democratic basic order in the course of the meeting or the contents discussed at the meeting above, the meeting cannot be punished as a crime of meeting under the National Security Act.

According to the facts established by the court below and the first instance court, the defendant was not able to discuss the amendment of the Order and Regulations of the Republic of Korea before and after the visit of the North Korea of this case at the level of South Korea, and tried to discuss the amendment of the Order and Regulations by holding the National Assembly during the period of the unification festival of the Republic of Korea. Even if the government was issued a certificate of visit to North Korea and was subject to conditions that it shall not participate in any political discussion for purposes other than inter-Korean exchange and cooperation, it is difficult to find that the non-indicted 1 of the North Korean government and the head of the North Korean headquarters of this case, who is in charge of other important duties such as the Vice-Chairperson of the Ordinance on the Unification of the Republic of Korea at the time and at the place of the judgment of the court below. However, even if the government was issued the certificate of visit of North Korea, it is difficult to find out the fact that the non-indicted 1 of the North Korean government and the head of the North Korean government were pan-government organization's new and new meetings.

Therefore, the judgment of the court below which found the defendant guilty of the crime of meeting under Article 8 (1) of the National Security Act is erroneous in the misunderstanding of legal principles as to the interpretation and application of the National Security Act. Thus, the grounds for appeal pointing this out should be accepted. The majority opinion has different opinion, and the purport of dissenting opinion is to be stated.

Chief Justice Kim Young-ran (Presiding Justice)