(영문) 서울고등법원 2012. 6. 8. 선고 2012노82 판결

(2) Of the facts charged against the Defendant, the charge of violation of the National Security Act (convening, communication, etc.) due to the communications and liaison with Nonindicted Party 1 (the Nonindicted Party in the Supreme Court’s judgment) on March 2003 is acquitted.

B. Of the guilty portion of the judgment of the court below, both appeals against the remainder except for the crimes of paragraphs (1) and 2-A (a) of the judgment below and the prosecutor's appeal against the acquittal portion of the judgment of the court below are dismissed.

2. Defendant 2

A. The guilty portion of the judgment of the court below is reversed.

(1) The defendant shall be punished by imprisonment with prison labor for four years and suspension of qualifications for four years.

(2) The evidence 1 to 93, 95 to 107, and 109 to 116 of the Seoul Central District Prosecutors' Office that was seized shall be confiscated from the defendant.

(3) Of the facts charged against the Defendant, the Defendant’s violation of the National Security Act (convening, communication, etc.) due to the communication and liaison with Nonindicted Party 1 on March 2003 and the violation of the National Security Act (convening, communication, etc.) due to the communication and liaison with Nonindicted Party 1 on April 2003, shall be acquitted, respectively.

B. The prosecutor's appeal on the violation of the National Security Act (special locked and escape) among the acquitted portion of the judgment below is dismissed.

3. Defendant 3

A. Of the judgment below, the part of guilty and the part of acquittal as to the violation of the National Security Act (praise, rubber, etc.) due to production of “the 25th strong coastal activity” on January 21, 2005 is reversed.

(1) The defendant shall be punished by imprisonment with prison labor for not less than two years and six months and suspension of qualifications for not less than two years and six months.

(2) However, for a period of four years from the date this ruling became final and conclusive, the enforcement of the above imprisonment shall be suspended.

(3) The evidence 1, 2, 5 through 17, 25 through 45, 49, 52, 71 through 73, 75, 77 through 82, 84 through 88, and 90 of the Seoul Central District Prosecutors' Office, which was seized, shall be confiscated from the defendant.

(4) Of the facts charged against the Defendant, the charge of violating the National Security Act by manufacturing and possessing the “Gang Coast” on January 2005 and the charge of violating the National Security Act by possessing the “2030815” on December 30, 2005 is not guilty.

B. Of the non-guilty portion of the judgment below, the prosecutor's appeal against the violation of the National Security Act (special diving and escape), each violation of the National Security Act (special diving and escape) relating to the meeting held in North Korea on December 1, 2004, each of the violation of the National Security Act (special diving and escape) relating to the meeting held in the court below on April 2005, each of the violation of the National Security Act (special diving and escape) relating to the meeting held in the court below on September 2005, each of the violation of the National Security Act (special diving and escape) relating to the meeting held in the court below on December 1, 2005, and the prosecutor's appeal as to the production and possession of the "plan" on February 1, 2005, is dismissed.

Reasons

1. Summary of the grounds for appeal by the Defendants

A. misunderstanding of facts or misunderstanding of legal principles

(1) North Korea is not an anti-government organization.

(2) The Republic of Korea's Republic of Korea is not a dual organization.

Therefore, the indictment of this case was erroneous in its premise, and Defendant 1 cannot be punished as a crime of dual membership.

(3) As to the communications and liaison part of the judgment

(A) This part of the facts charged is premised on the premise that Nonindicted 1 is a North Korean co-author, and there is no evidence to acknowledge the “written confirmation”, etc. submitted by the prosecutor for the purpose of proving it, and there is no other evidence to acknowledge it. Even if Nonindicted 1 so desires, the Defendants did not know such fact.

(B) Communications and liaison with Nonindicted 1 is merely business cooperation daily. Accordingly, it cannot be deemed that the Defendants had an intent to cause substantial harm to the national existence and security or democratic fundamental order, and there was no clear danger that there was no substantial harm.

(4) The assertion as to the Lee Dong-dong part in the holding

(A) The Defendants’ assertion of the United States Armed Forces in Korea, the abolition of the National Security Act, the suspension of Korea-U.S. military training is merely an individual and political opinion irrelevant to North Korea and thus cannot be deemed as having complied with the assertion of North Korea, and it cannot be deemed that there is an obvious risk that may cause substantial harm to

(B) Various meetings, commemorative meetings, training meetings, etc. held by the South Korean Civil Association, which are determined through collective resolution procedures inside the territory of the Republic of Korea, is unreasonable to fully take the responsibility of the Defendants.

(5) argument on the part of the holding meeting

(A) Since the Defendants were in contact with North Korea or North Korea under the approval of the Minister of Unification, even if there was an act beyond the scope of the approval in the process, there is no room to establish a violation of the National Security Act, apart from the fact that there is a violation of the Act on Inter-Korean Exchange and Cooperation.

(B) The Defendants merely divided a formal dialogue with the North Korean personnel, and the remarks of the North Korean personnel were merely a speculative and unilateral political speech, and thus, it cannot be deemed that there is an obvious risk that such a meeting will cause substantial harm to the fundamental order of free democracy, etc.

(C) In the depth of December 2005, there was no fact that the “Council of Joint Speakers in South-North Korea, North Korea, and overseas” was held, and it was merely a simple drinking-type meeting.

(6) The assertion on the special diving and escape part relating to the deep-sea meeting on August 2006 (Defendant 3)

(A) Defendant 3 merely omitted the approval of contact with North Korean residents by mistake in practice, and thus, cannot be deemed to constitute a crime of special escape or escape as indicated in the judgment.

(B) In addition, Defendant 3 did not accept any order at the time, did not meet separately with members of anti-government organizations, etc., and did not have any fact that Defendant 3 went into Korea for any purpose.

(7) The assertion on the production, possession, distribution, etc. of pro-enemy contents

(A) In relation to “the course of the nation”, “the course of the nation” is not “the course of the nation. In particular, Defendant 1 and 3 merely expressed the unification hall, political officer, etc., and do not intend to conject or instigate for the purpose of forming North Korea’s assertion, and do not constitute any danger. Furthermore, even if “the course of the nation” constitutes pro-enemy, Defendant 1 and 2 did not participate in the publication thereof.

(B) Defendant 2 was unaware of the fact that there was a book with “the theory of the revolution of popular democracy against the nation” in his own house, and Defendant 2 was unaware of the fact that “the book with North Korea’s U.S. strategy” constituted pro-enemy.

(C) It was true that Defendant 3 received e-mail from Defendant 2 on December 30, 2005 with the “200308.hwp” file from Defendant 2 and stored it in his own e-mail. However, this is merely a collection of printed materials for production, and it cannot be deemed that there was a dual purpose.

(8) Defendant 2’s assertion as to the receipt of money and valuables

Defendant 2’s act of receiving the “work career of the nation” from the overseas readers, and cannot be deemed as constituting the crime of receiving money and valuables under the National Security Act.

(9) As to the exclusionary rule of illegally obtained evidence

(A) The evidence acquired and submitted by the investigative agency through the clock wiretapping constitutes illegally collected evidence and thus, it is inadmissible.

(B) The proviso of Article 6(7) of the Protection of Communications Secrets Act concerning permission for extension of communication-restricting measures was rendered by the lower court’s proposal for adjudication of unconstitutionality, and the decision of inconsistency with the Constitution is a kind of decision of unconstitutionality. Therefore, at least in this case, the retroactive effect of the above decision of inconsistency with the Constitution is recognized. Therefore, the evidence collected and submitted based on the extended communication-restricting measures based on the above proviso cannot be admitted as evidence of illegality.

(C) In the process of executing the instant e-mail search and seizure, the Defendant’s right to participate in the procedure was infringed due to the lack of prior notice prescribed by the Criminal Procedure Act. Therefore, the execution of the instant e-mail seizure is deemed unlawful. Therefore, the evidence collected therefrom cannot be admitted as evidence because it

B. Unreasonable sentencing

The sentence imposed by the court below against the defendants is too unreasonable.

2. Summary of grounds for appeal by a prosecutor;

A. The waiver of appeal

The prosecutor renounced the appeal against the violation of the National Security Act (competence, communication, etc.) due to the communication and liaison with the non-indicted 1 on April 2004 among the non-guilty part against the defendant 2. This part was separated and finalized.

B. misunderstanding of facts or misapprehension of legal principles

(1) Each special escape and escape against the Defendants 3)

The Defendants concealed that they are belonging to the headquarters of the South-North Korea, which is an immigration organization, and obtained a North Korean certificate by deceiving the relevant authority as if they were jointly and severally related to unification, or obtained approval for contact with North Korean residents. In fact, the Defendants received orders such as the details of the charges by meeting with the personnel of the headquarters of the North Korean Republic of Korea and went into the Republic of Korea for the purpose of fulfilling their objectives. In addition, the Defendants’ above acts cannot be deemed to be “within the scope recognized as legitimate as an act for the purpose of inter-Korean exchange and cooperation,” and they cannot be deemed to be “within the scope recognized as an act for the purpose of inter-Korean exchange and cooperation,” and there is an obvious risk of substantial harm to the national existence and security or democratic fundamental order, and even though they were well aware

(2) Defendant 3’s production and possession of “plan” with pro-enemy contents

Although Defendant 3’s “Planning.hwp,” which was produced and possessed by Defendant 3, is a document completed for lectures, etc., which is sufficient to be recognized as pro-enemy contents, the lower court acquitted Defendant 3 of this part of the facts charged, by misapprehending the legal principles or

C. Unreasonable sentencing

The sentence imposed by the court below against the defendants is too uneasible and unfair.

3. Ex officio determination

Before making decisions on the grounds for appeal by both parties, this paper examined ex officio.

A. As to the point of communication and liaison on March 2003 of the guilty part against Defendant 1 and 2 and the point of communication and liaison on April 2003 of the guilty part against Defendant 2

Article 12 of the Protection of Communications Secrets Act provides that any mail or its contents obtained through the implementation of communication-restricting measures and the contents of telecommunications shall not be used except for “a crime which is the object of communication-restricting measures or a crime related thereto is investigated, prosecuted, or used to prevent such crime.”

However, among the parts found guilty by the court below,

① Data on the “The contents of the call between the above Defendants and Nonindicted 1 on March 4, 2003,” which was submitted to prove the violation of the National Security Act due to the communication and liaison on March 2003 (Article 2-A-A-2 of the criminal facts in the original judgment) (the results of the verification of the original CD, recording, etc.), and

② Data on Defendant 2’s “The monetary content of April 12, 2003 between Defendant 2 and Nonindicted 1” submitted to prove the violation of the National Security Act due to communications and liaison (Article 2-B(b) of the original judgment) on April 2003 (the result of the verification of the original CD, recording, etc.)

The permission for extension of communication-restricting measures issued to collect evidence against Nonindicted 2’s suspicion of violation of the National Security Act (Seoul District Court Decision 2000Do5461 delivered on October 22, 2002, No. 882, No. 301) can only be used for Nonindicted 2’s violation of the National Security Act or for the investigation, prosecution, and prevention of any crime related thereto. However, the court below erred by misapprehending the rules of evidence, which found all of the above charges guilty, by misapprehending the rules of evidence.

Therefore, the part of the facts charged and the part of the conviction against Defendant 1 who was sentenced to a single sentence in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act cannot be maintained as it is, as stated in the judgment of the court below, the part of the crime and the whole conviction against Defendant 2.

However, despite the above reasons for ex officio destruction, the above defendants' assertion of mistake of facts or misapprehension of legal principles is still subject to the judgment of this court.

B. Of the convictions against Defendant 3, as to the production and possession of the "Gang Coast" around January 2005 and the production of the "Gang Coast" around January 21, 2005 among the acquitted parts

(1) In relation to Defendant 3’s guilty portion of the “Gang Coast” production and possession (the part on the charges of Article 5. E. 1 of the original judgment) around January 2005, the lower court found Defendant 3 not guilty on the grounds that there was no evidence to acknowledge this part of the facts charged despite examining the entire records of this case. However, the lower court erred by misapprehending the legal principles or misapprehending the legal principles. Accordingly, the entire guilty portion against Defendant 3, who was sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, could not be maintained.

(2) In addition, the prosecutor applied for the amendment of the Act on January 21, 2005 with respect to Defendant 3, who was found innocent in the judgment of the court below, to change the contents of the "production on the rivershore" to the point of "bearing" on January 21, 2005, and this Court permitted it and changed the subject of the judgment so that this part can no longer be maintained. Meanwhile, as seen below, the court found Defendant 3 guilty of the "bearing" of the aforementioned 25th change in exchange for the aforementioned 25th trial. As such, this court cannot maintain the conviction portion as to Defendant 3 in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act.

(3) However, despite the above reasons for ex officio destruction, Defendant 3’s assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court.

4. Determination on the grounds for appeal

A. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

(1) North Korea's anti-government organization

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

In accordance with the above legal principles, the judgment of the court below that recognized the nature of the anti-government organization of North Korea is just, and there is no error of law by misunderstanding the legal principles, so the defendants

(2) The dual nature of the Republic of Korea's Republic of Korea

Article 7(1) and (3) of the National Security Act refers to the 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 anti-government organizations or their members or those ordered by them (hereinafter referred to as "government organizations, etc.") with the knowledge of the fact that such act may endanger the existence and security of the State or democratic fundamental order. Such interpretation of the elements of a crime of dual organization and joining the State refers to the continuous and independent combinations formed by a specific number of people for the purpose of praise, encouraging, promoting, or aiding and abetting the activities of anti-state organizations, etc. In light of the principle of interpretation and application of the National Security Act and the purpose of the National Security Act (Article 1(1) and Article 7 of the same Act to ensure the security of the State and the survival and freedom of citizens by regulating anti-state activities which may endanger the national security) (see, e.g., Article 8(1) of the same Act).

The court below, based on the facts of its decision, held that even though the South-North Korean headquarters had shown a movement to amend lectures and regulations in order to escape from the face and strengthen popularity on the surface, the activities of anti-government organizations, members of the South Korean headquarters, or those who were ordered by the South-North Korean headquarters, were continuously the purpose of praise, rubber, propaganda, or assistance in the activities of anti-government organizations, and the actual activities also constitute a so-called dual organization that has a risk of substantial harm to the national existence and security of the State and democratic fundamental order. In light of the above legal principles, the court below's above decision is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the dual organization under the National Security Act.

Therefore, Defendant 1’s assertion that the South Korean government headquarters is not a dual organization is not established, and Defendant 1’s assertion that it did not constitute a violation of the National Security Act (the composition of an independent organization, etc.) is without merit.

(3) As to the assertion on the communications and liaison in the judgment

(A) First, we examine the Defendants’ assertion related to Nonindicted 1.

Of the written confirmations, etc. submitted to prove that Nonindicted Party 1 is a North Korean official artist, Nonindicted Party 1’s academic background, career, family relationship, North Korea details, activity status, etc. In addition, the remaining parts of the written confirmations, etc., other than the official seal, include Nonindicted Party 1’s academic background, career, family relation, North Korea details, and activity status. Although it was long as a consul prepared in the process of performing his official duties, it cannot be deemed as being written based on strict documentary evidence. Thus, the above confirmations cannot be deemed as a document prepared on matters that can be proved in the course of his duties by a public official or a foreign public official under Article 315 subparag. 1 of the Criminal Procedure Act. Further, it cannot be deemed as a document prepared on the basis of other special circumstances of credit as stipulated in subparag. 3 of the same Article. 313 of the Criminal Procedure Act. Accordingly, the remaining parts of the written confirmations, etc. prepared by a consul at a preparatory hearing or during a public trial, except for official seal, shall be admissible as the Defendants’ pointed out (see, etc.).

However, it is sufficiently recognized that the criminal judgment already became final and conclusive with respect to the same facts is a flexible evidence (see, e.g., Supreme Court Decision 2008Do10096, Apr. 29; 25, 2009). The written judgment on Nonindicted 3, 4, 5, 6, and 2, etc. submitted as evidence in the instant case is sufficient. Furthermore, according to the evidence duly adopted and examined by the court below (in particular, the above written judgment and the materials supporting 10 years old), Nonindicted 3, who was the chief of the office of the South Korean Civil Headquarters, was sufficiently aware of the facts of the above facts, such as the fact that Nonindicted 3, 2008Do1096, and the facts that the Defendant was convicted of the facts that were recorded in the Seoul High Court’s joint secretary general and the communication network, and that Nonindicted 1, 2004, which were recorded in the Seoul High Court’s communication network and communication network, and that the Defendants were found guilty as one of the above facts.

(B) As to the Defendants’ assertion that there was no risk of undermining the basic liberal democratic order due to business cooperation, the principle of interpreting that the National Security Act shall be applied to the crime of meetings and communications as stipulated in Article 8 of the National Security Act, even if there is an obvious risk of undermining the nation’s existence and security or democratic basic order, with the knowledge of the fact that the crime of meeting and communications under Article 8(1) of the National Security Act is an interest of anti-government organizations, or with the knowledge of the fact that it may endanger the existence and security of the nation or democratic basic order.

From the perspective of the above legal principles, the communications and liaison with the defendants and non-indicted 1 are mainly conducted in order to give and receive guidelines on the direction of the activities of the headquarters in South Korea, such as military politics, to give and receive North Korea's special courses, such as anti-U.S. military politics, to prepare various dual events, and to give and receive documents from other foreign organizations such as anti-U.S. and U.S. military exercise, etc., and to actively act in North Korea, which is an anti-government organization that is an anti-government organization that takes measures to overcome our free democracy system. In light of the fact that the defendants are the core members of the headquarters in South-North Korea, the communications and liaison with the defendants' decision is clearly dangerous that the existence and security of the Republic of Korea or substantial harm to free democratic basic order, and the defendants were fully aware of such fact.

Therefore, the Defendants’ assertion that the communication and liaison with Nonindicted Party 1 is merely a part of daily business cooperation is without merit.

(4) As to the assertion on the Lee Dong-dong's objection

(A) First, we examine the argument that the motion of the US Armed Forces in Korea cannot be deemed as a co-ordination with the North Korea’s argument, and that there was no risk of undermining the liberal democratic fundamental order.

The term "act of assistance" under Article 7 (1) of the National Security Act refers to the act of responding to and joining the activities of an anti-government organization by asserting or complying with the claim identical with the activities of an anti-government organization, etc. In addition, the interpretation principle that the National Security Act should be applied restricted to the case where there is an obvious risk of substantial harm to the existence and security of the State or democratic fundamental order (see, e.g., Supreme Court en banc Decision 2003Do758, supra).

In light of the above legal principles, the following circumstances acknowledged by this court and the court below comprehensively taking account of the evidence legitimately adopted and examined: ① the South Korean co-ordination headquarters held a joint council every year and accepted the main contents of the message, excluding the expressions praiseing Kim Jong-il's political affairs, etc. from among the messages revealed through the old co-government theory, etc.; ② the South Korean co-ordination headquarters has carried out specific projects; ② the South Korean co-ordination headquarters shows a movement to hold nuclear weapons in addition to the abolition of the National Security Act; and furthermore, it was sufficiently established that North Korea had consistently carried out various projects or measures under the direction of the North Korean co-ordination and Security Association; ③ the North Korean co-ordination and Security Association's assertion that North Korea had consistently carried out the projects or measures under the direction of the North Korean co-ordination and Security Association; and ③ the North Korean co-ordination and Security Association's assertion that North Korea had consistently carried out the projects or measures under the direction of the North Korean co-ordination and Security Association's political activities.

Therefore, the above assertion by the Defendants is without merit.

(B) Next, with respect to the assertion that the Defendants cannot be fully responsible for various events, meetings, etc. to be determined through collective decision-making, the co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, which are the implementation of a crime through the functional control based on their intent of co-processing and the functional intent. Even if some of the competitors do not directly share and implement part of the constituent acts, considering the status, role, control over the progress of the crime, etc., if it is acknowledged that the functional control over the crime exists through essential contribution to the crime, rather than merely a conspiracy, if it is recognized that there exists a functional control over the crime through substantial contribution to the crime, the so-called crime as a co-principal cannot be exempted (Supreme Court Decision 2008Do694 Decided September 24, 2009). Since the co-principal meeting, the Central Assembly of Members, the Central Publicity Council, the Training Meeting, and the Chairman of the Policy Association as well as the Chairman of the Policy Association as the chairman of the Policy Association as the chairman of the Policy.

(5) On the argument about the issue of the holding meeting

(A) First, as to the assertion that there is no room to establish a violation of the National Security Act because the act of meeting with anti-government organizations, etc. conducted during the visit to North Korea or in contact with North Korea, the Minister of Unification's issuance of a certificate of visit to North Korea or approval of contact with North Korean residents itself is limited to allowing visit to North Korea or contact with North Korea itself, and it does not purport that all specific and individual acts are permitted or justifiable. Thus, whether the act of meeting with anti-government organizations, etc. conducted during the visit to North Korea or in contact with North Korean residents is recognized as an obvious risk of substantial harm to the existence and security or free democratic fundamental order of the Republic of Korea should be separately determined for each act. Therefore, even if the approval of the Minister of Unification was obtained, 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 aimed at inter-Korean exchange and cooperation. Rather, if it is deemed that there is an obvious risk of substantial harm to the existence and security of the Republic of Korea or democratic fundamental order, there is no room for the Defendants to establish the National Security Act.

(B) As to the assertion that the National Security Act does not constitute a meeting under the National Security Act, and there was no risk of undermining the fundamental liberal democratic order, the crime of meeting and communication under Article 8 (1) of the National Security Act shall be established with the knowledge that it would be an interest of an anti-government organization, or with the knowledge that it may endanger the existence and security of the State or democratic basic order, or with the members of an anti-government organization or persons who were ordered to do so. However, the interpretation principle that the National Security Act shall be applied restricted to cases where there is an obvious risk of substantial harm to the national existence and security or democratic basic order, is also applied to the crime of meeting and communication under Article 8 of the National Security Act.

The court below determined that each meeting in its holding has a clear danger of substantial harm to the existence and security of the nation or democratic fundamental order (which shall be up to 263 through 270 pages of the original decision), and in light of the above legal principles, the court below's above decision is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles. Thus, the defendants' assertion is without merit.

(C) Meanwhile, the Defendants asserted to the effect that, in the depth of December 2005, they did not hold a meeting of the Joint Speakers Association in South, North, and overseas, and did not hold a simple drinking-type meeting. However, even if the form of the meeting was not a “Joint Speakers Association,” the Defendants’ assertion does not affect the establishment of a crime of violation of the National Security Act (convention, communication, etc.) in light of the overall circumstances as seen in the above sub-paragraph (b). Therefore, the Defendants’ assertion is without merit.

(6) As to the assertion on Defendant 3’s special escape and escape

(A) Defendant 3 argues that it is merely an omission of the application for approval of contact with North Korean residents in practice. However, according to the evidence duly adopted and investigated by the court below, this part of the facts charged is sufficiently recognized (it is difficult to believe the above Defendant’s assertion in light of the fact that Defendant 3 was the chairperson of the Uniform and Joint Policy Chairperson at the time, and that there was an example of North Korea or contact with North Korean residents, etc. before that time, and the judgment of the court below which found Defendant 3 guilty of the above Defendant’s assertion is acceptable, and there is no error of law of misunderstanding of facts, and therefore, Defendant

(B) As to the assertion that it was not an acceptance of order or a locking or escape for the accomplishment of purpose, the court below duly adopted and examined the evidence, and the defendant 3 went into China on August 22, 2006 after leaving the Republic of Korea through the old conference on practical consultation with the staff of the headquarters in the North Korea's Republic of Korea on August 22, 2006, and convened with the Defendant 3 on August 22, 2006. It is not reasonable for the Defendant 3 to accept the order, such as (i) promoting the activities of the press organization, (ii) promoting the activities of the press organization, (iii) studying the method of leading a new group, and (iv) reporting and disseminating the above meetings at the South Korea's 9th Central Execution Committee and the 19th Central Committee of the North Korea's Republic of Korea's Republic of Korea's Republic of Korea, and therefore, (iii) reporting and disseminating it.

(7) As to the assertion about possession of pro-enemy materials

(A) First, we examine the assertion relating to “the course of the nation”.

1) Relevant legal principles

The principle of interpretation that the National Security Act shall be applied to cases where there is an obvious danger that may actually harm the existence and security of the State or democratic fundamental order. To be recognized as pro-enemy pro-enemy under the National Security Act, the content of such pro-enemy must be active and aggressive that threatens the existence and security of the State and the liberal democratic basic order, which is the protected legal interest of the National Security Act. Whether there exists any such suitability should be determined by taking into account not only the overall contents of the expressive materials, but also all the circumstances such as the form of the expressive act and external relation, and the situation at the time of the expressive act (see Supreme Court en banc Decision 2009Do9152, Jul. 28, 201). In addition, in order to establish a crime under Article 7(5) of the National Security Act, the purpose of pro-enemy act should be conducted under Article 7(1), 3, and 4 of the same Act, and the purpose of this act should not be presumed to have been proven by the prosecutor that the act was committed.

2) Whether pro-enemy materials are pro-enemy materials

In light of the following circumstances recognized by this court and the court below, i.e., ① the contents of the article published in the South-North Korean government office’s course, i.e., ‘the course of the nation’ as follows; ② the South-North Korean government office’ is indicated in attached Table 1 of the court below’s decision, i.e., the ideology or structure of North Korea, such as ‘military politics’ as claimed by North Korea; the friendship of political power (No. 4, 8 through 13, 15, 16, 20); the North Korean government office’s 10, 12, 13, 12, 14, 17, 196, 195, and 2,000 North Korean government office’s activities for North Korea as North Korea’s public relations activities for North Korea as well as 10,000 North Korean government office’, 15,0000 Korean government office’, and 2,001 Korean government office’s activities for North Korea as public relations.

3) Whether there exists the purpose of the foreign act

As properly explained by the court below, the defendants have engaged in activities to instigate North Korea, such as gathering of the U.S. military iron in various ways, such as a group of co-chairpersons, central members' meeting, anniversary of the formation of a group of co-chairpersons, USTRAL resolution meeting, anti-ficial conference, holding of anti-ficial conference, holding of various contests, etc., and held with Nonindicted 7, etc. to receive orders related to the receipt of the U.S. nuclear policy rules, North Korea's nuclear activities, publicity of North Korea, abolition of the National Security Act, etc., and the performance of the following activities, etc., which could pose substantial harm to the existence and security of the Republic of Korea or democratic fundamental order; the "national career of the Republic of Korea" was issued as the organ of the South-North Korean co-ordination headquarters, which is an immigration organization, for the purpose of distributing it to its members, etc.; the defendants' activities were determined to comprehensively take into account all the circumstances, such as the defendants' position and experience at the headquarters of South Korea's Republic of Korea, and its position, and knowledge.

4) Whether Defendant 1 and 2 participated in the production, etc.

Defendant 1 and 2 alleged that they did not take part in the production, distribution, etc. of “career of the nation”, but Defendant 1, the president of the Republic of Korea, is the publisher of “career of the nation” in accordance with the doctrine of co-principals as seen earlier. Defendant 2, who is the president of the Republic of Korea, is the Minister of Affairs, who is in charge of overall affairs, such as organization bureau, general affairs bureau, and editing bureau, and is in charge of the crime, such as the production, distribution, etc. of “career of the nation”, which is pro-enemys of the Republic of Korea

5) Sub-decisions

Therefore, it is reasonable to find the Defendants guilty of this part of the facts charged, since the Defendants’ act of producing and distributing “the course of the nation” constitutes pro-enemy contents under the National Security Act, and the Defendants’ act of producing and distributing “the course of the nation” constitutes pro-enemy contents under the same Act. In full view of each of the above circumstances, it is recognized that the Defendants’ act of producing and distributing “the course of the nation” of the Defendants constitutes an obvious danger that may cause substantial harm to the existence and security of the Republic of Korea or the free democratic fundamental order by unilaterally inducing North Korea’s assertion that is an anti-government organization.

(B) In addition, Defendant 2 argued to the effect that he was unaware of the fact that he was holding the “the Revolution theory of national democracy,” or that he did not have awareness of the reason for the “North Korea’s U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S.S. S.S. S. S

(C) We examine Defendant 3’s assertion that there was no intention to transfer to the file possession of “20308.hwp” file.

1) Summary of this part of the facts charged

On December 30, 2005, Defendant 3 stored the e-mail (mail address 1 omitted) with Defendant 2’s own e-mail (mail address 1 omitted), which was sent to Defendant 3’s e-mail, including “the time of national reconciliation and compromise, our society opened and opened.” The Defendant 3 stored the e-mail of the title “her e-mail” attached to the 200308.hp file, and the main contents thereof are as follows.

= 20030815>

본문내 포함된 표 - ‘우리민족끼리’라는 새로운 민족적 이념에 따라 역사는 사대와 외세의존에서 벗어난 자주와 자존을 향하여 힘차게 전진하고 있고, 분열과 대결로부터 단합과 통일에로 전환하고 있습니다. - 우리에게는 위대한 선군정치에 의해 마련된 강력한 전쟁억제력이 있습니다. - 우리는 이럴 때 일수록 ‘우리민족끼리’의 이념에 더욱 충실하여야 하고 민족공조의 기치를 더욱 높이 들고 단합된 힘으로 대처해 나가야 합니다(범민련 북측본부 의장 공소외 8). - 경애하는 김정일 장군님의 두리에 굳게 뭉쳐 조국의 자주적 평화통일과 강성대국 건설에 적극 떨쳐나선 우리 북녘인민들은 오늘 이처럼 북과 남 해외의 각계각층 대표들이 평양에서 조국통일운동 역사에 큰 장을 아로 새기게 될 민족대회를 열고 있는 데 대하여 기쁘게 생각하고 있습니다. - 우리는 오늘도 내일도 영원히 선군을 좌우명으로 받들어 나갈 것입니다. 선군으로 지켜지는 우리조국은 영원히 우리민족의 것입니다(북한 내각총리 공소외 9).

As such, the above documents are contents that praises North Korea’s military politics, such as that the military politics leads and protects the nation, and propaganda and instigate North Korea’s attention and initiative.

As a result, Defendant 3 had a pro-enemy pro-enemy for the purpose of praiseing, encouraging, promoting, or aiding and abetting the activities of North Korea, which is an anti-government organization, with the knowledge of fact that it may endanger the existence and security of the State

2) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged based on each evidence.

3) The judgment of this Court

In order to establish a crime under Article 7(5) of the National Security Act, there must be a pro-enemy act as provided in Articles 7(1), 3, and 7(4) of the same Act. The prosecutor bears the burden of proving that an act was committed with a pro-enemy act. The fact that an act was committed under paragraph (5) of the same Article is not presumed to have a pro-enemy act. (See, e.g., Supreme Court en banc Decision 2010Do1189, Apr. 1, 2008). According to the records, the documents containing the “20308HP” file kept by Defendant 3 are seven cases. All of the facts are the statements that were held under the approval of the Korean government, and it is difficult to conclude that there was an error of law in the misapprehension of the legal principles regarding the “pro-enemy act” among the above pro-enemy activities by Defendant 1, a representative of the 300th National Unification Committee and the “Non-Indicted Party 2’s pro-enemy act” among the above facts.

Therefore, this part of the defendant 3's argument is with merit.

(8) As to Defendant 2’s assertion on the receipt of money and valuables

The crime of receiving money and valuables under Article 5 (2) of the National Security Act is not the purpose of receiving money and valuables from a member of an anti-government organization or a person who received an order from an anti-government organization, but shall receive money and valuables from a member of an anti-government organization or a person who received an order from the member of an anti-government organization, with the knowledge that it may endanger the existence and security of the country or democratic fundamental order (see Supreme Court Decision 96Do2158 delivered on November 12, 1996). In light of the relation between Defendant 2 and the North Korean Min Il-il, North Korean Min-young, and the circumstances and amount of receiving money and valuables, the sales proceeds of the above defendant's "the national career career" from the non-indicted 1 have the nature of the compensation for producing and distributing pro-enemy contents, and it is reasonable to view that there is a clear danger that the above defendant 2 also has a substantial harm to the national existence and security or democratic basic order, and therefore, the act of receiving money and valuables from the above nation constitutes the crime of receiving money and valuables.

(9) As to the assertion on the application of the exclusionary rule of illegally collected evidence

(A) First of all, we examine the argument that the lost wiretapping was illegal.

After finding the facts as stated in its holding, the lower court acknowledged the following facts: ① Cocket is included in “telecommunications” as stipulated in Article 2 subparag. 3 of the Protection of Communications Secrets Act; ② there is no possibility of somewhat comprehensive enforcement in the case of “Cocket wiretapping”; ③ there is a concern that the content of the communication or the content of the communication irrelevant to the investigation purpose of the third party in the case of “Cocket wiretapping” may be wiretapping; but there is only difference in the degree of the above, it can not be deemed illegal solely on the following grounds; ④ Defendant 2 continued to communicate and communicate with Nonindicted 1 in the office of the Cock headquarters in North Korea; on the other hand, Defendant 2, on the other hand, destroyed the evidence in a manner such as removing the received and received e-mail from Nonindicted 1, the need to collect evidence, and the need to collect evidence from the office without the need to do so, and on the other hand, deemed it lawful.

In light of the above circumstances stated by the court below, the judgment of the court below is justified, and it is hard to see that there was an error in the misapprehension of legal principles in the misapprehension of legal principles, considering the following: (a) the court below's aforementioned circumstance is based on the judge's legally issued permit under the Protection of Communications Secrets Act (the permit for communication-restricting measures has the substance as a warrant); (b) any illegal act was not found in the process of enforcement; and (c) the data collected directly through the Brack TK could not be submitted as evidence

(B) We examine the admissibility of evidence collected through the following authorized communication-restricting measures.

1) Progress of the decision of inconsistency with the Constitution and the Defendants’ assertion

On November 27, 2009, the lower court made a request for adjudication on the unconstitutionality of the proviso of Article 6(7) of the Protection of Communications Secrets Act. On December 28, 2010, the Constitutional Court rendered a decision that “the part concerning the extension of the period for communication-restricting measures concerning telecommunications among the proviso is inconsistent with the Constitution,” on the ground that the part concerning “the extension of the period for communication-restricting measures” against the Defendants’ freedom of communication in violation of the principle of excessive prohibition, and thereby infringing on the Defendants’ freedom of communication.” However, the purport that granting permission for the extension of the period for communication-restricting measures is not in violation of the Constitution, but is in violation of the Constitution, and that granting permission without restriction for the extension of the period is in violation of the Constitution. If the validity of the above provision becomes invalidated upon the declaration of a simple unconstitutional decision of unconstitutionality, the legal ground for the extension of the period for communication-restricting measures is lost and there is a concern that the legitimate extension of the period for investigation is unlikely to be possible.”

Accordingly, the Defendants asserts that the above decision of inconsistency with the Constitution constitutes a decision of unconstitutionality, and at least in this case the retroactive effect of the above decision of inconsistency with the Constitution is recognized. Thus, the evidence collected through the extended communication-restricting measures should be considered as illegally collected evidence and its admissibility should be excluded.

2) The judgment of the court below

The court below found the defendant guilty on the ground that the court below found the defendant guilty on the following grounds: (a) the part concerning the extension of the period of communication-restricting measures under the proviso of Article 6(7) of the Telecommunications Protection Act can be applied to this case; (b) the admissibility of evidence collected through the extended communication-restricting measures; (c) the part concerning the extension of the period is unconstitutional; (b) the investigative agency which requested extension of the period did not recognize the existence of unconstitutionality at the time of the request for extension of the period; (c) the defendant's remaining head office seems to have filed a new claim instead of the extension of the period if it had been confirmed by the Supreme Court as a dual organization; and (c) the e-mail, recording, facsimile data collected through the extension of communication-restricting measures in this case and the evidence collected through the extension of the period can be admitted as evidence for the defendants' major violation of the National Security Act.

3) The judgment of this Court

First of all, the court below's decision denying the retroactive effect of the above decision of inconsistency with the Constitution is justifiable in light of the following: (a) whether the court below's reasoning was consistent with the Constitution; and (b) whether the improvement legislation on the proviso of Article 6 (7) of the Protection of Communications Secrets Act has not yet been enacted

Furthermore, even if the retroactive effect of the above decision of inconsistency with the Constitution is recognized, it is reasonable to view that the evidence collected through the communication-restricting measures permitted for the following reasons is admissible, and the judgment of the court below that concluded is just, and it cannot be deemed that there were errors in the misapprehension of the legal principles.

① The purport of excluding the admissibility of illegally collected evidence is that it is the most effective and clear response to the investigation agency’s compulsory disposition that does not comply with the relevant procedural provisions and the prevention of recurrence. For that reason, it does not constitute a violation of the substantive contents of due process of the investigation agency, but rather has an exception to the use of evidence as evidence of guilt in cases where it is judged that excluding the admissibility of evidence would result in a violation of the intent of realizing justice of criminal justice.

② However, in the instant case, an investigative agency applied for a lawful extension pursuant to the provisions of the Communication-Restricting Measures Act at the time of the application, and collected evidence based on a written permission for extension issued by a judge, and thus, it cannot be evaluated that the pertinent provisions of the procedure were not complied with or violated the principle of due process due to the collection of evidence. It is reasonable to deem that the investigative agency constitutes exceptional cases where it can be admitted as evidence of guilt from the perspective of the discovery of substantial truth or justice of criminal justice, considering that there was no possibility of expectation of lawful act, that is, there was no possibility of expectation, and that the intent to exclude the admissibility of illegally collected evidence is to prevent the investigative agency from violating the procedural provisions in advance.

The Defendants also asserted the same as the grounds for appeal in the lower court, and the lower court rejected the Defendants’ assertion in detail on the allegations and the legal judgment as to them in the part of Articles 288 through 295 of the judgment.

On the other hand, even though the reasoning of the court below stated, even though the investigation agency's failure to give prior notice of the execution of seizure is illegal, it is reasonable to view that the evidence collected through such failure constitutes exceptional cases that can be admitted as evidence of guilt from the point of view of the discovery of substantial truth or justice of criminal justice. Thus, the court below's decision as stated in this conclusion is just, and there is no error of law

(D) Sub-determination

Ultimately, the defendants' assertion about the application of the exclusionary rule of illegally collected evidence is without merit.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

(1) As to the assertion on each special diving and escape 7)

(A) Relevant legal principles

Article 3 of the former Inter-Korean Exchange and Cooperation Act (amended by Act No. 7539 of May 31, 2005; hereinafter the same applies) provides that "this Act shall apply in preference to other Acts to the extent that it is deemed justifiable with respect to the activities aimed at the exchange and cooperation between South and North Korea, such as coming to and going to and going to and going to, trade and cooperation with North Korea, provision of telecommunications services, etc." It is natural that the National Security Act is included in the "other Acts" to which the former Inter-Korean Exchange and Cooperation Act applies first under the above provision (see, e.g., Supreme Court Decisions 90Do1613, Sept. 25, 1990; 92Do1815, Feb. 9, 1993).

In addition, it should be objectively determined by comprehensively taking into account the circumstances leading up to the visit between South and North Korea; whether the visit was issued as prescribed by Article 9(1) of the same Act; whether the specific purpose of the visit falls under trade and cooperative projects as prescribed by the same Act; whether the visiter in North Korea actually performs such trade and cooperative projects; and the movement before and after the visit; etc., which is the subsequent interpretation after the amendment by Act No. 7539 of May 31, 2005.

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, obtained a North Korea visiting certificate by deceiving the purpose of the visit and did not perform any other act according to the purpose of the visit specified in the North Korea visiting certificate, the purpose of the visit specified in the North Korea visiting certificate is merely merely an outer form of the visit certificate, and it cannot be deemed justifiable merely because the visit certificate was issued, as an act aimed at the inter-Korean exchange and cooperation. Thus, if the visit act satisfies the elements of the crime of escape stipulated in the National Security Act, it cannot be exempted from the liability for the crime.

However, if it is acknowledged without permission for such exceptional cases, the purpose of the Act to facilitate inter-Korean exchange and cooperation or the purpose of political judgment that the Minister of Unification permits visit to North Korea 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 visit permitted by the Minister of Unification, and an act that is not legally permitted by law by using the opportunity to visit, it cannot be evaluated separately by dividing the legitimacy of one visit by the purpose of visit. Therefore, if it can be deemed that a visit by a person who visits North Korea was visiting North Korea to engage in any other act that is not legally permissible, it is merely a nominal room for North Korea visiting North Korea upon receipt of the North Korean visiting certificate, it is justifiable to view that the visit by the person who visits North Korea itself is not justifiable, and contrary to Article 30 of the National Security Act, the act of visit by a person who visits North Korea to North Korea constitutes an act that is entirely identical to the above act of visit by the Minister of Unification under Article 50 of the National Security Act.

(B) Determination

The court below found the Defendants not guilty of each of the above facts charged on the ground that the Defendants met with North Korean personnel in violation of the conditions of visit or contact with North Korean residents, although the Defendants actually committed an act consistent with the purpose of visit or contact permitted by the Minister of Unification, as long as they met the conditions of visit or contact with North Korean residents.

According to the records, the defendants can not be seen as deceiving the relevant authorities solely on the ground that the defendants applied for the North Korea, etc. under the unification solidarity or the 6.15 South Korean side committee, (1) the defendants were engaged in actual activities with a certain position, and (2) the pertinent authorities that approved the North Korea, etc. were aware that the defendants 1 and 2 were the chairpersons of the South Korean counterpart headquarters and the Minister of Affairs (the date of permission for the first communication-restricting measures against the defendant 2 is July 29, 2003, and the date of permission for the first communication-restricting measures against the defendant 2 is stipulated as the "the Minister of Affairs of the South Korean counterpart Headquarters" in the occupational field). Furthermore, the defendants could not be deemed as deceiving the relevant authorities on the ground that the defendants applied for the North Korea, etc. under the jurisdiction of the unification solidarity or the 6.15 South Korean side committee, (3) the defendants were conducting unification solidarity in accordance with the actual purpose of the visit, or the defendants' activities of the North Korean counterpart separately, and (4) the defendants meet with North Korean personnel.

(2) As to the assertion on Defendant 3’s production and possession of “Planning.hwp”

In interpreting the elements of the National Security Act, it shall be strictly limited in light of the basic principle of interpretation and application of the National Security Act (Article 1(2) of the same Act), and the basic spirit of the principle of no punishment without law prohibiting analogical interpretation or expanded interpretation.

In light of the constitutional principles on the freedom of individual ideas and the freedom of conscience, even if an individual think that it would harm the security of the Republic of Korea or democratic fundamental order, such idea alone cannot be punished in criminal punishment, and in order to punish it, at least to be possible to punish it, the risk of infringement of legal interests should be specified in an objective manner. Thus, in order to punish it by producing, distributing, carrying, etc., an individual idea is fixed in the form of document, and the idea recorded in the document should reach the extent that it can be delivered to the outside by inspection. Even if the contents of the “Planning.hW” file prepared and sent by Defendant 3 are actively engaged in the activities of an anti-government organization, it appears that it is possible to correct it by stating his personal idea or future plan, and the evidence submitted by the prosecutor alone alone is insufficient to conclude that the above file was firmly fixed in the form of document, etc., or that Defendant 3 had the intent to allow a third party to peruse it, and there is no evidence to find otherwise in this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court’s determination that the “plan” did not constitute pro-enemy contents under Article 7(5) of the National Security Act is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles. The prosecutor’s aforementioned assertion

C. As to Defendant 1’s assertion of unreasonable sentencing against the guilty portion 9)

As examined below, North Korea still has the character of an anti-government organization that takes the responsibility for the unification of our free democracy system. As such, North Korea still has the same character as an anti-government organization that takes the responsibility for the unification of our free democracy system. Considering the fact that North Korea's participation in North Korea has unilaterally inferred North Korea's assertion for a long time under the name of North Korea, which is an anti-government organization, and that it causes substantial harm to the existence and security of the Republic of Korea and the free democracy system and social confusion, it is inevitable to punish the Defendant significantly.

However, in light of the following: (a) the Defendant is aged; (b) some of the facts constituting the crime of obstruction of performance of official duties, etc., which became final and conclusive on January 14, 2010, are concurrent crimes under the latter part of Article 37 of the Criminal Act; and (c) comprehensively taking into account all the sentencing conditions of the instant pleadings, such as the character and conduct of the Defendant, family environment, motive and circumstance leading to the instant crime, and circumstances before and after the instant crime, the lower court’s sentence against the Defendant is deemed to be adequate, too heavy or unreasonable, and thus, the Defendant and the Prosecutor’s above assertion are without merit.

5. Conclusion

A. The part to be reversed

Of the judgment of the court below, the part of the crime of paragraphs (1) and (2) of the judgment of the court below among the part of the conviction against Defendant 1, the part of the conviction against Defendant 2, the part of the conviction against Defendant 3, and the part concerning the production of the "25 days river" on January 21, 2005 among the part of the conviction against Defendant 3 and the part concerning the defendant 3's appeal against the part of the conviction against Defendant 3 are with merit. Thus, without any decision on the unfair sentencing of both parties as to the above part, the above part is reversed, and it is again decided as follows

B. The part rejecting the appeal

Of the judgment of the court below, the prosecutor's appeal on the remainder of the conviction except for the crimes of paragraphs (1) and 2-A (a) of the judgment of the court below, and on the remainder of the indictment with the exception of the part which was found guilty due to changes in indictment (the part concerning the production of the Gangwon Coast on January 21, 2005 against Defendant 3) is groundless. Thus, the prosecutor's appeal is dismissed pursuant to Article 364 (2) of the Criminal Procedure Act.

Criminal facts and summary of evidence

The summary of the facts of the crime and the evidence acknowledged by this court is as follows: for Defendant 1 among the facts of the crime, all of the remaining parts except paragraph (1) are deleted; and for the defendants, Article 2-1 (a) (b) and (e) (i) and Article 5-5 (e) (7) of the judgment of the court below shall be deleted; and on January 21, 2005, the "Distribution of the 25th River" shall be changed to the "Possession and Distribution of the 25th River" on January 21, 2005; the "production and distribution" in the 197 fifth heat of the judgment of the court below shall be changed to the "Possession and distribution"; and except for the deletion of Nos. 297, 301, 608, 1209, and 1594 in the summary of the evidence of the judgment of the court below, it shall be cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

○ Defendant 1

Article 7 (3) and (1) of the National Security Act [the fact of joining the enemy organization, and the upper limit of punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)];

○ Defendant 2

Article 8(1) of the National Security Act, Article 30 of the Criminal Act (a meeting and communication: Provided, That in the case of the defendant's sole criminal conduct, Article 30 of the Criminal Act is omitted), Article 7(1) of the National Security Act, Article 30 of the Criminal Act (a) of the Criminal Act, Article 7(5) and (1) of the National Security Act, Article 30 of the Criminal Act (a) of the Criminal Act, Article 30 of the Criminal Act (the production, distribution, and possession of foreign expressions: Provided, That in the case of the defendant's sole criminal conduct, Article 30 of the Criminal Act is omitted), Article 5(2) of the National Security Act

○ Defendant 3

Article 8(1) of the National Security Act, Article 30 of the Criminal Act (the point of assembly and communication), Article 7(1) of the National Security Act, Article 30 of the Criminal Act, Article 7(5) and Article 7(1) of the National Security Act, Article 30 of the Criminal Act (the point of production, distribution, and possession of foreign expressions: Provided, That in the case of the defendant's sole crime, Article 30 of the Criminal Act is omitted); Article 6(2) of the National Security Act (the point of special diving and escape, the choice of limited imprisonment)

1. Handling concurrent crimes;

○ Defendant 1: The latter part of Articles 37 and 39(1) of the Criminal Act (the composition, etc. of a foreign organization) and the crime of obstruction of performance of official duties as stated in the judgment of the court below finalized on September 25, 2003)

1. Aggravation for concurrent crimes;

○ Defendant 2: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the aggravated punishment for concurrent crimes against the National Security Act (Joint, Communications, etc.)]

○ Defendant 3: The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment of concurrent crimes with the punishment provided for in the National Security Act (special locked and Escape) due to the most severe special locked of punishment and criminal administration)

1. Concurrent imposition of suspension of qualifications;

○ Defendants: Article 14 of the National Security Act

1. Discretionary mitigation;

○ Defendant 3: Articles 53, 55(1)3 and 55(1)5 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Suspension of execution;

○ Defendant 3: Article 62(1) of the Criminal Act (The following, repeated consideration is made for the reasons for sentencing)

1. Confiscation;

○ Defendant 2 and 3: Article 48(1)1 of the Criminal Act

Reasons for sentencing

Although North Korea is a partner of dialogue and cooperation for the peaceful unification of South and North Korea, it cannot be denied that North Korea still has the character as an anti-government organization that is bound to adopt our liberal democracy system while enhancing the timely unification route, despite the changes in the relationship between South and North Korea, and this was proved to be an armed conflict between North Korea and North Korea, such as the First Pyeong Sea of 1999, the Second Pyeong Sea of 2000, and the Second Pyeong Sea of 200, the 2000, after the Joint Declaration of June 15, 200, and the 2010.

In this strict reality, the normative effect of the National Security Act as a positive law to ensure the security of the Republic of Korea should be secured, and even if there have been many academics and organizations need to revise or abolish the National Security Act in 20 years after the recognition of military illegality, the decision of the people who maintained the National Security Act should be respected. Furthermore, discussions on peaceful unification should be guaranteed, and the freedom and rights of ideas and expressions should be strongly protected. However, abuse of such freedom and rights to endanger national security and democratic fundamental order cannot be allowed to exceed the limit of protection.

Nevertheless, the Defendants are asserting that they act as the president, secretary, policy chairman, etc. of the headquarters of the Republic of Korea who is confirmed as a foreign organization several times from the Supreme Court, and they act as the president of the headquarters of the Republic of Korea, director of the office, and the chairman of the policy group, etc., and they act as the president of the headquarters of the Republic of Korea by the North Korean government, and they act as the president of the headquarters of the Republic of Korea. In other words, the Defendants asserted that they act together with the assertion of the Republic of Korea's independent financial rights by defending the nuclear development or military power of North Korea, by opposing the fundamental causes for the abolition of the National Security Act and the dissolution of the Korea-U.S. Union, and by claiming a full-scale strike for the abolition of the National Security Act and the dissolution of the Korea-U.S. Union, as it is used in the North Korean strategy, and it is inevitable to deny that there is a substantial danger in the existence, security or democratic fundamental order of the Republic of Korea in front of North Korea.

However, by using violent means, the defendants do not directly attempt to recall or abolish the national existence and security or democratic fundamental order, or do not instigate or instigate it. In the case of defendant 1, the defendant is in the relation of concurrent crimes with the special obstruction of performance of official duties as decided by the judgment on September 25, 2003 and the latter part of Article 37 of the Criminal Act, and the defendant 2 and 3 are the initial offenders, and the punishment as ordered by the disposition shall be determined by taking into account the favorable circumstances of the defendants.

Parts of innocence

Of the facts charged in this case, the point of violation of the National Security Act due to the communication and liaison with the non-indicted 1 on March 3, 2003 (convenation, communication, etc.), the violation of the National Security Act due to the communication and liaison with the non-indicted 1 on April 2003 (convenation, communication, etc.) and the violation of the National Security Act due to the production and possession of the "Graeshore" on January 30, 2005 and the summary of the violation of the National Security Act due to the possession of the "2030815" on December 30, 205 is as follows: (a) and (b) and (e) of Article 2-1, Article 5-5-5 (1) and (7) of the judgment of the court below; and (b) each of the above facts charged constitutes evidence of the crime under Article 3-1 (a) and (b) of the Criminal Procedure Act and Article 4-5 (2) of the latter part of the Criminal Procedure Act (3).

Judges Park Jong-young (Presiding Judge) Lee Jae-young

1) To the extent of supplement in case of supplemental appellate briefs not timely filed, a summary of the oral argument shall be considered to the extent of supplement in case of supplemental appellate briefs

Note 2) The Inter-Korean Exchange and Cooperation Act (hereinafter referred to as “Inter-Korean Exchange and Cooperation Act”) is limited to “Inter-Korean Exchange and Cooperation Act.”

Note 3) Defendant 3’s conviction of Defendant 3’s excluding the parts of special diving and escape in relation to the deep-sea meetings on August 2006.

4) The mail or its contents and contents acquired through the execution of the communication-restricting measures under Article 12 of the Protection of Communications Secrets Act shall not be used except for the cases falling under any of the following subparagraphs:

5) Nonindicted Party 2 was prosecuted with the Seoul Central District Court in April 4, 2004 for violating the National Security Act (Joint, Communications, etc.) and was sentenced to a suspended sentence of three years on April 4, 2005 and a suspended sentence of two years on April 4, 2005, and the said judgment became final and conclusive (Seoul Central District Court No. 2004Dahap9666, No. 49). Nonindicted Party 2 was not prosecuted for facts pertaining to this part of the facts charged.

6) Although it is not clear whether the Defendants are dissatisfied with the above paragraphs (a) through (c) or not, the statement in the grounds of appeal is not sufficient. However, in full view of the following: (a) the specific contents of each pro-enemy organization; (b) the motive and circumstance leading up to the production, possession, distribution, etc. of the Defendants; (c) the Defendants’ experience, academic background and status; and (d) the Defendants actively combine with members of the anti-government organization and communicate and join North Korea; and (c) the Defendants jointly cooperate with North Korea, the court below is fully justified in finding

Note 7) The exclusion of Defendant 3’s charge of special diving and escape

Note 8) It is nothing more than a clear provision that the application of the law in preference to other laws is made within the meaning of “within the scope of the purpose of the law” so that it can be applied in preference to other laws.

9) The remainder (two years of imprisonment and suspension of qualifications for two years and two years of suspension of qualifications for six months and suspension of qualifications for one year) other than the crimes of paragraphs 1 and 2-a (a) of the judgment of the court below

심급 사건

-서울중앙지방법원 2011.12.22.선고 2009고합731,2011고합348(병합)

서울고등법원 2012.6.8.선고 2012노82

-대법원 2012.10.11.선고 2012도7455

원심판결

-서울중앙지방법원 2011. 12. 22. 선고 2009고합731, 2011고합 348(병합) 판결

본문참조판례

-대법원 1990. 9. 25. 선고 90도1613 판결

-대법원 1993. 2. 9. 선고 92도1815 판결

-대법원 1996. 11. 12. 선고 96도2158 판결

-대법원 2002. 10. 22. 선고 2000도5461 판결

-대법원 2007. 11. 15. 선고 2007도3061 전원합의체 판결