2010 Inventory 4 A. Violation of the National Security Act

(b) Spy;

1. United StatesA (22 years old, South Korea);

2. Yellow A1 (24 years old, south);

1. CurrentB (47 years old, South Korea);

2. YellowB1 (54 years old, South);

Kim Sung-dong

Busan District Court Decision 85Gohap682 delivered on November 27, 1985

May 31, 2011

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Progress of judgment;

According to the records, the following facts are recognized.

A. Determination of the original judgment

(1) On July 6, 1985, the defendant U.S.A has been sypted with an order issued by a member of an anti-government organization on July 1, 1947 and July 10 of the same year with the aim of supporting the members of an anti-government organization. On December 3, 1980, the defendant U.S.A was sypted with military secrets and sypted with an order issued by a member of an anti-government organization on May 26, 1984 to collect national secrets from members of an anti-government organization and attempted to act as a sypted with an order issued by a member of an anti-government organization on May 28, 1985. On April 8, 1985, the defendant U.S. court convicted the defendant 1 and sypted with the attached Form 1 of the facts charged, excluding the defendant 2's imprisonment with prison labor for not more than 5 years, and the remaining charges charged with the defendant 1 and 2.

(2) Accordingly, Defendant UA filed an appeal against the guilty portion with the Daegu High Court 86No101, but the above court dismissed both appeals on March 27, 1986. Thereafter, Defendant UA and the Prosecutor appealed with the Supreme Court 86Do989 on July 8, 1986, but the judgment subject to a retrial became final and conclusive by the Supreme Court rendered a judgment dismissing the appeal on July 8, 1986.

B. On June 24, 2010, the applicant for a decision to commence a new trial filed a request for a new trial against the instant judgment subject to a new trial. On November 8, 2010, the court rendered a decision to commence a new trial, and the said decision to commence a new trial became final and conclusive as it is. The fact-finding decision of the past reorganization committee for truth and reconciliation was affirmed

한편, 진실·화해를 위한 과거사 정리위원회(이하 '과거사위원회'라고 한다)는 재심청구인들의 신청에 따라 진실규명을 한 결과, 이 사건은 ☆경 대공분실 및 ★경찰서 경찰관들이 피고인들, 최C, 유C1, 최C2(이하 '피고인들 등'이라 한다)을 영장 없이 구금한 채 고문·가혹행위를 통해 진술을 강요하고 검찰이 동일한 내용으로 법원에 공소제 기하여 중형을 선고받게 한 인권침해 사건으로, 형사소송법이 정한 바에 따라 재심 등의 조치를 취하는 것이 필요하다는 취지의 진실규명결정을 하였다.

2. Scope of the judgment of this court;

A new trial may be requested only for the benefit of a person who has been convicted in a certain case where there is a certain reason as to the final judgment of conviction. In the instant judgment subject to new trial, the judgment of innocence was rendered on the facts against Defendant U.A among the facts charged against Defendant U.A., and the prosecutor appealeded against this, but the final appeal was dismissed, and this part of the judgment became final and conclusive. Therefore, the part of the facts charged not guilty is excluded from the judgment subject to new trial of this case, and the scope of the judgment of this court is limited to the part of conviction against the Defendants, such as

3. The facts charged in this case

The facts charged of this case are as shown in the attached Form.

4. Summary of arguments between the applicant for retrial and his/her defense counsel;

Defendant U.S. issued a seaman’s passport and received money from the U.S.C5 and U.C6 at the house of Category C4 in Japan due to lack of economic circumstances, and Defendant Yellow A1 received a copy of the family register of C7 and received money from YC8 through YC8. However, even though the Defendants did not know that the Defendants would endanger the nation’s existence and security or democratic fundamental order, the Defendants did not commit the instant crime, despite the fact that the Defendants were found to have committed the instant crime, and were investigated in a state of illegal confinement by police officers without a warrant, and were led to a cruel act during that process, and the Defendants were acquitted.

5. Determination

(a) An overview of evidence requested by the prosecutor;

(1) At the new trial proceedings of this case, the Defendants’ statements and statements prepared in the police and the prosecution; (3) 1 to 39, 74, 77, 80, 92, 96, 102, 126, and 128; (2) 39, C12, 13, 14, 15, 166, 17, 361 to 46, 17, 361 to 47, 361, 47, 164, 167, 47, 164, 365, 17, 19, 320, 203, 361 to 47, 365, 361, 47, 19, 319, 320, 324, 325, 327, 363, 27, 2763, 327, and 274.

(b) Documentary evidence not admissible;

(1) Since the contents of each protocol of interrogation of the Defendants prepared by the police, each protocol of interrogation of the Defendants, each protocol of interrogation of the Defendants, each protocol of interrogation of the Defendants prepared by the police officer as well as each written statement, each written statement, and each written statement (No. 35 through 39, 74, 75, 77, and 80 as evidence) prepared by the Defendants or their defense counsel are not recognized, they cannot be used as evidence.

(2) Each protocol of examination on Defendants, etc. prepared by the prosecution

(A) Even though the Defendant was not forced to make a confession before the prosecutor, the Defendant made a confession without voluntariness at the investigative agency prior to the prosecutor’s investigation agency, including adviser, and made a confession of the same contents in the same investigation stage. On the other hand, confession before the prosecutor’s investigation is also deemed a confession without voluntariness (see, e.g., Supreme Court Decision 92Do2409, Nov. 24, 1992). Meanwhile, the purport of denying the admissibility of evidence of a statement without voluntartariness lies in not only in itself being consistent with the substantive truth but also in order to prevent it from infringing on the fundamental human rights of the person who made the statement without voluntartariness and from being forced to make an unfair pressure. Thus, if there is a dispute over voluntartariness, the Defendant does not prove reasonable and detailed facts, but the prosecutor’s doubt about voluntariness, and if the Defendant did not have the admissibility of evidence after the prosecutor’s statement being made as evidence, the admissibility of evidence is not admissible.

(B) The record reveals the following facts.

① 피고인 유A는 1985. 4. 20.경 ☆경 대공분실 및 ★경찰서 경찰관들에 의하여 연행되었고, 피고인 황A1은 1985. 4.경 위 경찰관들에 의해 연행되었다가 1985. 4. 26. 풀려난 후 다시 1985. 5. 9.경 연행되었으며, 최C는 1985. 3. 23.경, 유C1은 1985. 3. 19.경, 최C2는 1985. 5. 9.경 위 경찰관들에 의해 각 연행되었는데, 피고인들 등은 위 각 연행일로부터 피고인들 등에 대한 구속영장 발부일인 1985. 5. 30.까지 최소 22일에서 최장 73일까지 불법구금된 상태에서 수사를 받았다.

② Defendant UA made a false confession at the second trial date of the trial before the commencement of a new trial and the first trial date of the appellate trial, due to adviser and long-term confinement at the police, and the prosecution made a false confession at the police before the commencement of a new trial. The first trial date prior to the commencement of a new trial, the second trial date of the trial, and the first trial date of the appellate trial, the third trial date before the commencement of the new trial, and the first trial date, by force of the police, made a false confession. The prosecutor made a false confession by the police. The prosecutor did not want to have an adviser but made a false confession as at the police. The C1 made a false confession as at the first trial date of the second trial and the fourth trial date prior to the commencement of a new trial, and made a false statement from the police interrogation committee to the effect that he was forced to have the police as at the first time, and made a false confession. However, the prosecutor made a false confession and made a false statement to the effect that he was not aware of the suspect’s seat and location.

③ In the investigation for ascertaining the truth of the past History Committee, UNC1 stated that police officers were at the time of wooden monbbucks, etc. without lockeding, and that police officers were allowed to prepare a suspect interrogation protocol, etc., and thereafter, they did not write the suspect interrogation protocol, and that C and U.S. were allowed to provide advisory advice, but they were able to display a hole near the sobucks, and that C 1’s wife c3 did not have a saw saws when being investigated by the police from U.C. 1, and that they were able to see that c3 did not have any saws, so that they could not be able to see so much too much, and that they were able to see that they were 3rd of the judgment in question, and that they were 3rd of the judgment in question, and that they were 20th of the judgment in question, and that they were 3rd of the judgment in question.

(C) Therefore, in light of the circumstances before and after the statement, each protocol of examination of the accused, etc. prepared by the prosecution (Evidence List 91 through 102, 104, 105, 124 through 129) is difficult to recognize the voluntariness of the statement as being caused by illegal confinement, coercion, and cruel acts by the investigative agency, and it cannot be viewed as evidence collected according to lawful procedures, and thus, it cannot be admitted as evidence.

(3) Each protocol of statement prepared by an investigative agency about the C10(2)(C11), C11, C12, C13, C14, C23, c27, c31.

Each of the above evidences (Nos. 45, 46, 47, 51, 52, 60, 68 through 70, 111, 114, 119, and 121 of the evidence list) did not consent to the defendants and their defense counsel to use them as evidence. Since it is not proved that the statements, etc. by the original person's statement, etc. are the same as the contents of the statement, or the statement or preparation was made in a particularly reliable state is not proved (in the case of the deceased person), it cannot be used as evidence (in the case of the deceased person).

(4) Of each consular certificate (Evidence No. 12) of the consular certificate of each consular certificate, the remaining parts except the authorized parts of the consular certificate (Evidence No. 12) are those who play a leading role in the consular officer within the consular training. D2 is doing so. UC6 as the head of the Yellow C7, and the head of the UC6 is a person who is carrying out consular activities such as supporting entertainment activities, such as Cho Jong-dommsan's Gamsan's garam and cash, etc. as the head of each consular certificate, and U.S. 3 is a consular officer for about 20 years before the 20th consular officer, and U.C5 is a consular officer for the period of 20 years before the 20th consular officer and its executive officer for the organization, but the purpose of U.C6 is to prove that he is a consular officer for the purpose of performing consular activities as a consular officer during the process of his consular.

Inasmuch as each of the aforementioned confirmation parts cannot be deemed as having been made based on strict documentary evidence, it cannot be deemed as having been made based on the transcript or abstract of the family register as stipulated in Article 315 subparagraph 1 of the Criminal Procedure Act, a certified copy or abstract of the authentic deed, or any other document concerning matters that can be proved in the course of performing duties by a public official of the Republic of Korea or any other state official, and it cannot be deemed as having been admissible as evidence as it constitutes a document prepared under other circumstances particularly reliable to credit under subparagraph 3 of the same Article (see Supreme Court Decision 2007Do7257, Dec. 13, 2007). In addition, each of the above consular certificates by the defendants and the defense counsel did not consent to the admissibility of evidence, and it is not proven that the authenticity of establishment is not proven by the testimony of the author under Article 313 of the Criminal Procedure Act, or that the preparation is made under particularly reliable circumstances. Therefore, it cannot be admitted as evidence.

(5) Each investigation report, actual fact-finding report (No. 48 to 50, and 73 on the evidence list) cannot be admitted as evidence since the Defendants and the defense counsel did not agree to use it as evidence, and it was not proven that it was the same as the statement by the original person’s statement, etc.

Therefore, evidence among evidence documents submitted by the prosecutor is admissible as evidence: ① Park C9, C10 (one time), this C15, 16, c17, 18, c19, c20, C21, Kim 22, c24, c25, c8, c8, c26, c28, c29, c30, c132, c32, c333, 57, 46 through 58, 61, 61, 63, 64 through 58, 81, 64, 71, 251, 251, 161, 257, 37, 47, 47, 46 through 57, 271, 46, 61, 63, 63, 64, 78, 81, 824, 106, 171, 161, 214

(1) The premise for the determination

Article 7 (1) of the former National Security Act (amended by Act No. 3993, Dec. 4, 1987; hereinafter the same) shall be interpreted only where each act is applied when it threatens to endanger the existence and security of the State or threatens to endanger the liberal democratic basic order (see Constitutional Court Order 89HunGa113, Apr. 2, 1990); Articles 5 (2), 8 (1), and 9 (2) of the same Act shall be equally construed.

(2) Under the above premise, the evidence No. 1 to 3 was received by the defendant at the 1st 6th Dam 144444, the defendant's testimony and evidence No. 1 to 5th Gam 2, the defendant's testimony and evidence No. 1 to 6th Gam 2, the defendant's testimony and evidence No. 1 to 5th Gam 2, the defendant's testimony and evidence No. 1 to 6th 5th Gam 14, the defendant's testimony and evidence No. 1 to 6th 5th Gam 2, the defendant's testimony and evidence No. 1 to 5th Gam 2, the defendant's testimony and evidence No. 1 to 6th Gam 2, the defendant's testimony and evidence No. 1 to 5th Gam 14, the defendant's testimony and evidence No. 1 to 5th Gam 1814.

(3) Examining the fact that Defendant Yellow A1 received money or goods from a member of an anti-government organization or a person who received such order (Article 5(2)), or offered convenience to him/her (Article 9(2)), even though he/she was aware that it may endanger the existence and security of the State or democratic fundamental order, the following facts are revealed: ① The statement statement (Evidence No. 78) of thisC24 prepared by an investigative agency among the evidence that he/she seems consistent with it was received 30,000 won from the Defendant’s father who was under his/her request by Kim D14 of August 1978, 198, from the Defendant’s husband who was under his/her request by Kim D14 of his/her own c7.

(3) Each statement (Evidence List No. 81, 82, and 84) prepared by an investigation agency on yellow C25 is about the fact that yellow C8 delivered to the defendant, 10,000 UN, 31,000,000,000 won and 1,000,000,000 won and 1,000,000,000 won and 1,000,000,000 won and 1,000,000 won and 1,000,000 won and 1,00,000,000 won and 2,00,000 won and 2,00,000 won and 2,00,000 won and 3,00,00 won and 1,00,000 won and 2,00,00 won and 1,00,00,00 won and 2,01,00.

(4) The theory of lawsuit

Therefore, the evidence submitted by the prosecutor to prove the facts charged in the instant case against the Defendants is inadmissible or insufficient to recognize the facts charged in the instant case, and there is no other evidence to acknowledge the facts charged in the instant case.

6. Conclusion

Thus, since all of the facts charged against the Defendants constitute a case where there is no proof of crime, the Defendants should be acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment should be published under Article 440 of the Criminal Procedure Act and Article 58(2) of the Criminal

It is so decided as per Disposition for the above reasons.

Judges of the presiding judge, Kim Dong-ho

Judges Lee Jae-chul

Judges Park Jong-hee

Attached Form

Facts of public prosecution

Defendant U.S.A was born to the south of April 1, 197 between the deceased father's Mad17-4, and it was born to the Republic of Korea on 1933

The actual contents of the Navy located in the Navy shall be three years after completion of three years, and around March 1939, mediation of D2, the death of which is the death of Japan.

에 의거 일본국 시가깽 소재 직물공장의 공원으로 생활하다가 1945. 3. 귀국하여 본적

From 1954 to 1954, various construction works sites in Busan and Gyeongnam areas shall be assigned to the land.

person who is engaged in a stocking;