Defendant

Defense Counsel and Prosecutor of the defendant

Lee Jae-won (Court of Prosecution) and a litere (Court of Public Trial)

Law Firm Chang-chul, Attorney Lee Young-soo

Seoul Central District Court Decision 2013Ma341 Decided July 11, 2013

The conviction in the judgment of the first instance court shall be reversed.

The punishment of the accused shall be determined by imprisonment with prison labor for not less than one year and six months and suspension of qualifications for one year and six months.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

Of the facts charged in the instant case, the charge of violating the National Security Act by attending the Geumsan Memorial Hall on August 12, 1995 is not guilty.

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant

With respect to the fact of misunderstanding of facts or misapprehension of legal principles (in relation to the fact of some of the crimes that were convicted in the first instance trial, the Defendant entered and participated in various passive events without refusing the demand of North Korea from Nonindicted 1 (the Nonindicted Party 1 in the judgment of the Supreme Court), and did not interfere with the activities of North Korea, and in particular, there was no intention to commit a crime. In particular, the simple participation in the Geumsan Memorial Memorial Complex does not constitute “an act that has a clear risk of substantial harm to the national existence and security or democratic fundamental order”) and unfair sentencing.

(b) Prosecutors;

With respect to the misconception of facts or misapprehension of the legal principles (in relation to the violation of the National Security Act (praises, rubber, etc.) which was acquitted in the first instance court, the court of first instance that rejected the credibility of the report of labor newspapers consistent with each of the above facts charged, and rendered a not guilty verdict on this part of the facts charged shall be deemed unlawful and erroneous, etc.)

2. The judgment of this Court

A. As to the defendant's assertion of mistake of facts

(1) Defendant’s assertion

The Defendant is a “the free of wind that is not fluent in a group of ideas, ideas, etc.,” which intends to refuse to belong to a group of ideas, ideas, etc., and is a nationalism who coexists in a long-term prestigious life and defects in a long-term Kim-gu Kim-young (in the sense that he is not forgotten with a father and a Korean national spirit, his name is called “○○”), and is a democratic person, and as a defendant pursuing humanitarianism based on a formal justice, Non-Indicted 1’s political ideology was able to support Non-Indicted 1 without any relation with his individual cos and human respect (a non-indicted 1’s non-indicted 1’s non-indicted 1’s non-indicted 1’s act of sponsoring Non-indicted 1 without another person’s request or instruction). At the time, both the public security authority of the Republic of Korea and the so-called “public movement rights” were doubtful).

At the time when Nonindicted Party 1 is repatriated to North Korea and the Defendant stays in Austria where punishment is imposed, Nonindicted Party 1 received a gift stating that “I would want to come up with the Defendant once before Nonindicted Party 1 died,” and the Defendant did not properly engage in personnel management and decided that I would come up with him last once before the other hand of Nonindicted Party 1.

피고인은 1995. 8. 10.경 북한에 들어가 1995. 8. 11. 당초의 목적대로 공소외 1을 만났지만 그 후 바로 출국하지 못하고, ‘조국해방 50돐 민족통일대축전’(이하 ’민족통일대축전‘이라고 함)과 관련하여 북한 당국에서 미리 짜놓은 일정에 따라 여러 장소를 방문하고 각종 행사에 참가하였다. 다만 피고인은 당시에도 북한 체제나 김일성 주체사상 등을 절대로 인정하지 않는 입장이었으므로, 북한의 활동을 적극적으로 찬양·고무·선전하거나 이에 동조하지는 않았고, 처음 노동신문의 잘못된 기사 내용을 보았을 때 나름대로 항의도 하였다.

After and after the visit to North Korea, the Defendant had been in exchange with the Republic of Korea's Republic of Korea, but after the visit to North Korea, the Defendant liveded with the people working in the Republic of Korea. After the visit to North Korea, the Defendant had been living in the Republic of Korea as a member of the refugee status in Germany for a long time, and had his family members gather and live together with the old parents.

(2) Relevant legal principles

Article 7(1) of the National Security Act provides that "an act of assistance in the activities of an anti-government organization, etc." refers to an act of joining or joining in the activities of an anti-government organization, etc. by asserting or complying with such an act, which is alleged to be identical with the activities of an anti-government organization, etc. In addition, the interpretation principle that the National Security Act should 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 assistance in the activities of an anti-government organization, etc., as well as the crime of assistance in the activities of an anti-government organization. Therefore, an act of assistance prohibited under Article 7(1) of the National Security Act should reach the extent that one actively expresses his/her intent to agree with and join the activities of an anti-government organization, etc., and it should not be readily concluded that there is an obvious danger and harm to the national existence and security or democratic basic order (see, e.g., Supreme Court en banc Decision 201Do2781, Jul. 27, 2017.

(3) Judgment of this Court

피고인이 앞서 진술한 성장배경, 남다른 성격이나 기질, 사회활동 경력, 방북 전후의 이념적 성향, 방북의 목적, 방북 시점 등까지도 염두에 두고, 피고인이 항소이유로 내세우는 사실오인 등 주장의 당부에 대하여 살피건대, 제1심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음의 여러 사정들, 즉 ① 피고인은 북한으로 들어오기 전 독일 베를린에 있는 범민련 유럽본부 사무실에서 약 5개월 동안 숙식을 하면서 기관지인 ‘조국은 하나’의 편집 등을 도와주기도 하였으므로 범민련이 북한의 주장과 선전·선동을 따르고 전파하는 단체라는 사정과 1995. 8. 15.경을 전후하여 북한에서 대대적으로 열리는 민족통일대축전 행사에 범민련 유럽본부 소속 관계자도 참가한다는 사실을 알고 있었던 점, ② 피고인이 범민련 유럽본부 사무실에서 북한 공작원 공소외 2를 만나게 되었고 그를 통하여 민족통일대축전 행사를 앞두고 북한에 들어가게 되었으므로, 북한 측에서 피고인과 공소외 1을 단지 상봉시켜 주는 정도의 인도주의적 배려에 그치지 않고 공소외 1과 각별한 친분이 있는 피고인을 북한이 개최하는 여러 정치적 행사에 참가하게 함으로써 북한 체제의 선전 등에 이용할 가능성도 높다는 사정을 예측할 수 있었으리라고 보이는 점, ③ 피고인은 1995. 8. 12. 김일성 동상을 방문하였을 당시 단순한 참관이나 의례적인 수준에서의 묵념 정도에 그치지 않고 다른 참석자들과 함께 ‘위대한 수령 김일성 유훈인 90년대 통일을 실현하기 위해 적극 투쟁한다’는 내용의 결의문까지 채택한 점, ④ 피고인이 1995. 8. 13.경 ‘백두산 출정식’에 참석하였을 때에도 민족통일대축전에 관하여 당시 북한이 선전·선동하고 있던 내용과 어긋나지 않는 취지의 연설을 직접 하였고, 이어지는 1995. 8. 14.경 ‘민족통일대축전 평양시 군중대회’에 참석하였을 당시에도 북한측의 인사와 범민련 사무총장, 범청학련 남측본부 대표 등이 ‘남녘의 통일애국인사들이 파쑈 탄압을 박차고 평양에 오고... 분렬주의자들의 반통일행위를 용납하지 않고 투쟁으로 짓부셔 나가려는 남조선 인민들의 불굴의 의지...’, ‘김정일 장군’, ‘미국과 반통일매국세력에 맞서... 투쟁하고 있다’는 등 북한의 선전·선동과 동일한 내용의 연설을 하는 것을 듣고 박수를 치는 등의 호응을 하였던 점, ⑤ 피고인은 1995. 8. 15. 판문점 북측 통일각에서 열린 ‘민족통일대축전 개막식’, ‘8·15 범민족대회’, ‘대민족대회’에 각 참석하여 연방제 통일방안, 고려민주 연방공화국 등 북한이 주장하는 통일방안을 지지하는 각 연설자들의 연설에 박수를 치고 ‘7천만 겨레에게 보내는 호소문’을 참가자 전체의 명의로 채택하기도 한 점 등에 비추어 보면, 피고인의 위와 같은 행위들은 단순히 소극적이고 의례적인 수준을 넘어 북한의 주장에 호응·가세하는 의사를 외부에 표시하는 정도에 이르렀고 당시 채택한 결의문 등과 선동적 연설의 각 내용, 참석한 행사의 정치적 성격이나 규모 등에 비추어 그 호응·가세 행위만으로도 대한민국의 존립·안전이나 자유민주적 기본질서에 실질적 해악을 끼칠 명백한 위험성도 인정될 여지가 있다.

However, with respect to the defendant's act of 195.8.12, 1995, which carried the symbolic meaning in North Korea, there is insufficient evidence to conclude that the defendant actively carried out the speech or speech of North Korea system, such as Kim Il-sung and Kim Il-sung, or left the book of 198 (the first instance court also declared innocence for the same purpose). In light of the principle of interpretation that the National Security Act should be applied to the remaining part of the book of 20th anniversary of the fact-finding and the fact-finding of the deceased's 2's act of 10th anniversary of the fact-finding or the fact-finding of the deceased's 10th anniversary of the fact-finding or the fact-finding of the deceased's 2th anniversary of the fact-finding of the case, the defendant still did not know the fact-finding of the deceased's 10th anniversary of the fact-finding or the fact-finding of the deceased's 1st century at the time of 2nd, and the defendant still did not know the 9th of North Korea's customs.

Therefore, in full view of all the circumstances seen earlier, the Defendant’s assertion that even the fact of violation of the National Security Act (e.g., praise, rubber, etc.) by attending the Geumsan Memorial Cemetery should not be easily convicted, among the parts found guilty in the first instance trial, shall be accepted, and all of the remaining arguments such as erroneous determination of facts shall not be accepted.

B. As to the prosecutor's assertion of mistake

In light of records and relevant legal principles, the first instance court's decision that acquitted the Defendant of certain violation of the National Security Act (e.g., praise, rubber, etc.) on the grounds as stated in its reasoning is acceptable, and there is no illegality such as misunderstanding of facts or misunderstanding of legal principles affecting the conclusion of the judgment, and each of the above arguments by the prosecutor

3. Conclusion

Therefore, the Defendant’s appeal regarding the violation of the National Security Act (e.g., praise, encouragement, etc.) by worshipping in the Geumsan Memorial Cemetery among the criminal facts in the judgment of the first instance court is accepted only by the Defendant’s appeal, without examining each of the alleged unfair sentencing cases, and all of the convictions in the judgment of the first instance under Article 364(6) of the Criminal Procedure Act are reversed, and the part thereof is reversed, subject to pleading, and the prosecutor’s appeal regarding the acquitted portion is rejected under Article 364(4)

The summary of the facts constituting an offense and evidence acknowledged by this court is as follows: 4.C. (2) of the facts constituting an offense of the court of first instance except for the full deduction of the part of paragraph (2) of the court of first instance, and therefore, it is identical to that of the court of first instance. Thus, it is cited as it is in accordance with Article

1. Article applicable to criminal facts;

Article 8 (1) of the National Security Act (the point of each meeting), Article 6 (1) of the National Security Act (the point of escape) and Article 7 (1) of the National Security Act (each point of the same Article).

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act.

1. Concurrent imposition of suspension of qualifications;

Article 14 of the National Security Act.

1. Suspension of execution;

The main text of Article 62(1) and Article 62(2) of the Criminal Act (the main text of Article 62(1) of the Criminal Act does not include any grounds for disqualification from probation against the defendant, and considering the defendant's usual tendency and relationship between the defendant and the non-indicted 1, it appears that the North Korean court was imprisoned to visit the non-indicted 1 at the level of "inhumanism," instead of due to the biased political purpose or belief of the defendant, and considering the favorable circumstances, such as the defendant has no record of punishment for any crime similar to this case,

Of the facts charged in the instant case, the Defendant, on August 12, 1995, committed the act of acting in North Korea as an anti-government organization, with the knowledge that the North Korean government visited the North Korean residents of the Geumsan Memorial Cemetery used to promote the North Korean system, thereby endangering the State’s existence and security or democratic fundamental order. This constitutes a case where the proof of a crime is insufficient, and thus, the Defendant was acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Park Jong-dae (Presiding Judge)

1) Non-Indicted 1 (1917 to 2007): At the time of the Korean War, the war was arrested in the Republic of Korea, and was arrested in the Republic of Korea. The period was 34 years thereafter, and was repatriated to North Korea in 1993. The Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic of Korea’s Republic