A. The nature of the provisions of Articles 327 and 328 of the Criminal Procedure Act that stipulate the grounds for dismissing the public prosecution

(b) requirements for recognition as a justifiable act.

(c) Whether the act committed in the binding force between groups constitutes coercion.

(d) Criteria for determining whether an assembly or demonstration is likely to cause a significant social anxiety as provided in Article 3(1)4 of the Assembly and Demonstration Act

E. Whether Article 3(1)4 and (2) of the Assembly and Demonstration Act are unconstitutional

(f) Method of collection in cases where statements made by the same person in the police, the prosecution and the court are different from each other;

(g) Punishment in cases of possessing a book with the recognition that it is a versive book which may benefit the propaganda and inciting activities of the North Korean Meritorious Group;

(h) Whether it is necessary to amend a bill of indictment to correct minor errors in the indictment

A. In a case where a trial dismissing a public prosecution is a formal trial where the public prosecution is deemed unlawful on account of procedural defects, and where the formal litigation conditions are defective, the grounds therefor are stipulated in Articles 327 and 328 of the Criminal Procedure Act, and these reasons are limited.

B. Whether a certain act is justified as a legitimate act should be determined reasonably, depending on specific cases. Whether it is legitimate or not should be determined from the perspective of the State’s order. In order to recognize a legitimate act, requirements such as the legitimacy of motive and purpose of the act, reasonableness of means and method of the act, balance between the protected legal interest and the infringed legal interest, urgency, and balance between the protected legal interest and the infringed legal interest, should be satisfied.

(c) cannot be viewed as coercion of an act solely on the ground that the act was carried out in the binding force of the relationship between groups.

D. If there is a risk of destroying public peace and order and causing social confusion, it constitutes an assembly or demonstration which is likely to cause considerable social anxiety, and it shall be determined by comprehensively taking into account all circumstances such as the place, purpose, mode, contents, etc. of the assembly or demonstration.

E. Article 3(1)4 and Article 3(2) of the Assembly and Demonstration Act stipulate that the freedom of assembly and association or all rights and freedom of citizens may be restricted by law only in cases where it is necessary for national security, maintenance of order or public welfare, and thus, the Assembly and Demonstration Act shall be delegated by the Constitution, which prohibits assemblies and demonstrations in order to protect public peace and order, and shall not be deemed to violate Article 9, Article 20, and Article 35 of the Constitution or to conflict with the basic spirit of the Constitution.

F. A statement in the police, each protocol of interrogation of the prosecutor's interrogation, each protocol of the trial of other criminal cases, and a statement of the same person as a witness in the trial court of the case in question, there is no rule of law that the testimony in the trial court should be believed, and it is the free evaluation of the fact-finding court that the testimony in question should be cited as the materials for fact-finding.

G. Since a person who majored in economics and was aware that it is a French book that benefits the propaganda and inciting North Korea's anti-government organization, as long as he possessed a book, the crime of possessing a book for the purpose of benefit of anti-government organization should be constituted. Furthermore, it is unnecessary to establish the crime for the purpose of benefiting North Korea's anti-government organization as an anti-government organization.

H. In order to clarify the contents of the indictment more clearly and correct minor errors, it is necessary to go through the procedures for modification of indictment, and it can be acknowledged that the facts constituting a crime are corrected.

A. Articles 327 and 328 of the Criminal Procedure Act. Article 20(d) of the Criminal Act; Article 3 of the Assembly and Demonstration Act; Article 9 of the Constitution; Article 20(e) of the same Act. Article 35 of the same Act is Article 308 of the Criminal Procedure Act. Article 7(1) E of the National Security Act. Article 298 of the same Act is Article 7(5) of the National Security Act.

B. Supreme Court Decision 82Do3248 delivered on March 8, 1983

Defendant

Defendant

Attorney Hong Sung-woo, Lee Hong-woo, Lee Son, Yellow iron, Cho Jong-hee, and Kim Jong-chul

Seoul High Court Decision 86No1079 Decided July 4, 1986

The appeal is dismissed.

The twenty-five days of detention days after the appeal shall be included in the original sentence.

The grounds of appeal by the defendant and defense counsel are examined together.

1. As to the assertion of dismissal of prosecution:

In a case where a judgment dismissing a public prosecution is a formal judgment which makes it illegal on the grounds of procedural defects, and where the formal litigation conditions are defective, the reasons are stipulated in Articles 327 and 328 of the Criminal Procedure Act, and these reasons are interpreted as limited.

The grounds pointed out in the arguments are clear that it does not fall under Article 328 (1) 4 of the same Act and any of the subparagraphs of this Act, and it is natural in light of the legal principles that the procedure and method of institution of public prosecution must proceed to a substantive trial without a formal trial in the instant case.

The court below held that there was an external appearance of human rights protection and an illegal investigation by an investigative agency in order to find substantial truth, but the judgment of the court below is obvious in light of the judgment itself that the reasons alleged by the arguments do not constitute grounds for dismissing prosecution, and that the court does not have the intent to accept or defend the illegal investigation by the investigative agency. Thus, the arguments are merely a shot of the judgment and a shot of the judgment.

The court below rejected the prosecutor's argument that the prosecutor's exercise of the prosecutor's right to prosecute against the violation of the Assembly and Demonstration Act (hereinafter "the Assembly and Demonstration Act") was unlawful and thus abused the right to prosecute as it lacks validity and validity, in light of the prosecutor's facts charged, it is just and it is clear and discussed that the court below's ruling does not always purport that the application of the Assembly and Demonstration Act is possible and reasonable for political retaliation.

2. As to the violation of the Assembly and Demonstration Act

(A) On the basis of comparison of the trial records as stated in the judgment of the court of first instance maintained by the court below, the facts constituting an offense can be acknowledged at the time of original adjudication, and there cannot be any errors of misconception of facts against the rules of evidence.

(B) Whether a certain act is justified as a legitimate act should be reasonably and reasonably determined depending on specific cases, and the legitimacy of the act should not be determined going beyond the national order. In order to recognize a legitimate act, first, the legitimacy of the motive or purpose of the act, second, the reasonableness of the means or method, third, the balance between the protected interests and the infringed interests, fourth, urgency Fifth, the supplementary requirements such as supplementary nature that there is no other means or method than the act should be satisfied (see Supreme Court Decision 82Do3248, Mar. 8, 1983).

However, according to the facts established by the court below, it cannot be deemed to be within the legitimate scope of business, and not only deviates from the reasonableness of the means, but also did not meet the requirements of urgency.

Although it is argued that a violation of the Assembly and Demonstration Act was forced, it is not a forced act. But the reason that it was a binding act between organizations can not be considered as an forced act, and there is no other data to recognize the reason that it was forced.

(C) The Assembly and Demonstration Act has its fundamental spirit not only to protect peaceful assemblies and demonstrations in a democratic society, but also to maintain public peace and order.

If there is a concern about destruction of public peace and order and causing social confusion, it constitutes an assembly or demonstration which is likely to cause considerable social anxiety, and it shall be determined by comprehensively taking into account all the circumstances such as the place, purpose, mode, contents, etc. of the assembly, demonstration. In light of this standard of judgment, the court below did not err by misapprehending the legal principles that all criminal facts were committed at the time of original trial as an assembly or demonstration under Article 3 subparag. 4 of the Assembly and Demonstration Act, which is the assembly and demonstration under Article 3 subparag. 4 of the Assembly and Demonstration Act.

(D) All citizens have the freedom of press publication and the freedom and rights of the people with the freedom of assembly and association, which are stipulated in Articles 20 and 35 of the Constitution that the freedom and rights of the people shall not be respected on the grounds that they are not listed in the Constitution, and Article 9 of the same Act guarantees the fundamental human rights of all citizens.

Article 3(1)4 and (2) of the Assembly and Demonstration Act impose restrictions on the prohibition of assemblies and demonstrations in certain cases in order to protect assemblies and demonstrations by delegation of the Constitution, but to maintain public peace and order, and thus, they cannot be deemed to violate Article 9, Article 20, and Article 35 of the Constitution or violate the basic spirit of the Constitution, and thus, cannot be deemed to violate Article 3(1)4 and Article 3(2) of the same Act.

3. As to the violation of the National Security Act

(A) The certified copy of each protocol of interrogation on Nonindicted 1, 2, 3, 4, and 5 prepared by the prosecutor and each copy of each written statement at the prosecutor's office prepared by Nonindicted 2 and 3 adopted as evidence in the judgment of the court below. The evidence is admissible as evidence in all of the original documents as documents falling under Article 315 subparag. 3 of the same Act, since all of the original documents are witnesses at the court of first instance, and they are time when they made statements or written as recorded in the protocol and written statements because they were not forced by means of adviser, assault, etc., and thus, they can be recognized voluntariness. In particular, as long as the prosecutor's interrogation of the suspect's objection and written statements at the time of the original written statement at the time of his own inquiry, unless they were prepared at the time of the symptoms of mental fission, the admissibility of evidence is not a ground for denying it, and it is naturally admissible as documents falling under Article 315 subparag. 3 of the same Act.

The cooking of evidence and the fact-finding based on it shall not be legal rules that if the rules of evidence are not contrary to the rules of evidence, they belong to the exclusive jurisdiction of the fact-finding court, the entry of the protocol of trial in each criminal case of the suspect interrogation protocol prepared by the police as well as the statement made by the same person in the court room of the concerned case should be believed in the case where the testimony is contrary to the rules of evidence. The question of whether to cite any conflicting testimony or appraisal as materials for fact-finding belongs to the free evaluation of the fact-finding court. However, even if examining the reasoning of the judgment of the court below and the trial records of the first instance court maintained by the court below, the evidence is not evidence collected by the illegal procedure, and the fact-finding of the court below based on it is just, and there is no error of misapprehending the legal principles as to admissibility

(B) Based on the facts established by the court below, the defendant's second-A, second-B, and third-party defendant's so-called under Article 7 (1) of the National Security Act and Article 7 (3) 1 of the same Act are justified and there is no error in the misapprehension of the legal principles of the National Security Act.

According to the facts found by the court below, since the defendant's movement theory and UN.D. through E.D.'s ideology of the National Security Act conflict with the law of the court's decision itself, it is clear that it was in conflict with the rule of law because it was in conflict with the doctrine of unification promotion by the North Korean government organization, the anti-government organization, and that it was in conflict with the rule of law, it is not necessary to make a detailed comparison and determination of which part of the ideology of the defendant's assertion is unlawful. Thus, there is no error of law of lack of reasoning or omission of judgment.

(C) According to the trial room determined by the court below, the past and current books of the Maurri Docce Dobb, which were the result of the Malithalism and the present books of the Malithalism, are based on the Malithal Dominism, from the perspective of the exploitation of the rank, and the development of the capital of workers as the mondic system based on the theory of the Maliististism has been inevitably promoted with the development of the mondicism as the mondicism as the mondicism of workers, and the mondicism as the mondicism has been developed as the mondicism. The country of the mondicism is to inevitably conduct the de-development of the development country as the mondicism as the mondicism, and it is concluded that the performance of the mondicism to the socialist into the socialistism as the mondicism, which is an anti-government organization, and thus, the defendant is composed of this anti-government organization.

(D) If there is a reason for a request for a retrial against the judgment of the court below, the grounds for appeal may be considered as the grounds for appeal, but if the prosecutor prepared the statement of the witness, or discovered a new new evidence, which was important when a leading question was made to the witness at the time of a public trial, the grounds for appeal cannot be considered as the grounds for retrial, since it does not constitute a ground for retrial.

(E) In order to correct minor errors in the contents of the indictment more clearly, it is necessary to go through the procedures for the modification of indictment and to recognize facts constituting an offense. Accordingly, it is not possible to judge the facts that the court below recognized that the place in which the ideology was discussed was "the Steering Committee" among the facts stated in the judgment of the court of first instance 2 of the judgment of the court of first instance as "the interconference meeting" and "the guiding ideology shall be discussed as "the guiding ideology" and there is no influence on the conclusion of the judgment.

4. All of the arguments are without merit. Accordingly, the appeal is dismissed, and part of the number of detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Yoon-tae (Presiding Justice)