[1] The meaning of "foreign organizations" under Article 7 (3) of the National Security Act and the criteria for its determination

[2] The case holding that it is difficult to recognize that '98 Shipbuilding' has participated in various illegal demonstrations by disclosing its position on political and social issues as a dual organization without identifying its own original purpose

[3] The requirements and criteria for determining pro-enemy contents under the National Security Act

[4] The case holding that it is difficult to recognize pro-enemy contents as pro-enemy contents

[5] Whether the National Security Act is unconstitutional (negative)

[1] The so-called "foreign organization" under Article 7 (3) of the National Security Act refers to a continuous and independent combination formed by many specified persons for the purpose of praiseing, encouraging, promoting, or assisting in, the activities of anti-government organizations, etc., or promoting and inciting the disturbance of the State. The recognition of a foreign organization should be strictly construed in light of the purpose of the above Act and the basic spirit of the principle of no punishment without law prohibiting analogical interpretation or expansion of interpretation.

[2] The case holding that it is difficult to recognize that '98 Shipbuilding' has participated in various illegal demonstrations by disclosing its position on political and social issues as a dual organization without identifying its own original purpose

[3] In order to be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the existence and stability of the Republic of Korea and the free democracy system, which are the legal interests protected under the National Security Act. The determination of whether there is an objection to the expressive materials ought to be made by taking into account not only the overall contents of the expressive materials, but also all the circumstances, such as the motive for the production thereof, the form of the expressive act itself

[4] The case holding that it is difficult to recognize pro-enemy contents as pro-enemy contents

[5] The National Security Act, which aims to secure national security and survival and freedom of citizens by regulating anti-state activities that may endanger national security, cannot be deemed to be an Act contrary to the Constitution or a malicious act contrary to social justice. This principle is not different even if the Constitution declares the principle of international peace and peaceful unification in Articles 4 and 5, and North Korea simultaneously joins the United Nations, thereby obtaining approval from the international community as a single sovereign state in the international community, and the Inter-Korean Exchange and Cooperation Act is in force to facilitate mutual exchange and cooperation between South and North Korea.

[1] Article 7 (3) of the National Security Act / [2] Article 7 (3) of the National Security Act / [3] Article 7 (5) of the National Security Act / [4] Article 7 (5) of the National Security Act / [5] Article 7 of the National Security Act, Article 4, Article 5 of the Constitution, Article 1 of the Inter-Korean Exchange and Cooperation

[1] Supreme Court en banc Decision 94Do1813 delivered on May 12, 1995 (Gong1995Sang, 2149), Supreme Court Decision 96Do2696 delivered on May 16, 1997 (Gong1997Sang, 1802), Supreme Court Decision 97Do395 delivered on March 27, 1998 (Gong1998Sang, 1260) / [3] Supreme Court Decision 90Do203 delivered on March 31, 1992 (Gong1992, 146), Supreme Court Decision 96Do1817 delivered on February 28, 197 (Gong197, 1969Sang, 197Do1979 delivered on June 16, 197) 97Do1979 delivered on June 19, 197 (Gong197 and 297Do1979 delivered on June 29, 19797).

Defendant

Defendant

Attorney Kim Jong-he

Gwangju High Court Decision 99No167 delivered on May 27, 1999

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

The defendant and public defender's grounds of appeal are also examined.

On the first ground for appeal

According to the reasoning of the judgment below, the court below determined that the 'National Maritime Defense Team' under the South-Seoul National Federation is an organization aimed at praiseing, encouraging, promoting, or acting in concert with the activities of North Korea, which is an anti-government organization, and that the combat organization of each university, such as the '98 Cho Jae-ok', in which the defendant joined, has been mobilized systematically in accordance with the direction of the president of the South-Seoul National Assembly since May 197, and has acted as the purpose of the establishment of the Korean Maritime Defense Team, such as taking the lead of the violence demonstration and taking the lead of the violence demonstration and taking the lead of the violence demonstration against the public organization, and that the above '98 Cho Jong-ok', which is an organization of the Korean National Maritime Defense Agency, is also an anti-national organization of

However, the so-called "foreign organization" under Article 7 (3) of the National Security Act refers to a continuous and independent combination formed by many specified persons for the purpose of praiseing, encouraging, promoting, or assisting in, the activities of anti-government organizations, etc., or promoting or inciting the disturbance of the State. The recognition of a dual organization should be strictly construed in light of the purpose of the above Act, the purpose of the above Act, and the basic spirit of the principle of no punishment without law prohibiting analogical interpretation or expansion of interpretation, which is stipulated in Article 1 of the National Security Act.

In order for the above '98' to be recognized as an independent dual organization separate from 'National Navy' as to this case, 'the above '98' has an independent aptitude, such as praise, rubber, publicity, or assistance in the activities of anti-government organizations, etc., or for the purpose of propaganda and inciting national disturbance. According to the records, '98' 'the 1998' 'the 1997 'the 1997 'the 1997 'the 1999'' has a different human organization. The 200 'the 1999 'the 1992 'the 198 'the 196 'the 196 'the 'the 198 'the 'the 198 'the 'the 196 'the 'the 'the 'the 196 'the 'the 'the 198 'the 'the ''the 196 'the ''''the '.

Therefore, it is difficult to recognize that the '98 Chonsan' was an organization separate from that of the 'National Maritime Defense Organization', just because it was participating in several times in the illegal demonstration by disclosing its position on political and social issues as above, before ascertaining the original purpose of the organization itself, such as the above '98 Chonsan', and as such, it is difficult to recognize that it was an organization having a separate aptitude that is distinguished from the 'National Maritime Defense Organization'.

Therefore, the court below, which is a fact-finding court, further review whether the above '98 '9' group' group was conducted simply as the sewage person under the direction of the president of the South-North Korea group, whether or not the act of the anti-government group was independently conducted, whether or not the act of the anti-government group was conducted, or whether or not the act of the anti-government group was conducted independently, or for the purpose of propaganda and inciting the national disturbance, whether or not the above '98 '98 '1' and '98 '5 '50' group' did not use violent methods as of 1998, and whether or not the above '98 '98 '2' group' group was changed in its nature, even though it was judged whether the above '98 '9' group' group was a pro rata group, but there was an error in the misapprehension of legal principles as to the pro rata group, or in the misapprehension of facts or the incomplete review.

The appeal pointing this out is with merit.

On the second ground for appeal

According to the reasoning of the judgment of the court below and the court of first instance cited by the court below, it is clear that the issue that the defendant's possession of a person's life was a serious controversy over the world for several years, which is eventually a material and that there was a change in the world's movement of material. In addition, the phenomenon of things in the world is constantly developing under mutual connection and action, and this change goes beyond the qualitative change. The development of things is the one of the most advanced people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and the other people's lives and opinions should be separated from the other people's lives and opinions.

However, in order to be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the existence and stability of the Republic of Korea and the free democracy system (see Supreme Court en banc Decision 90Do2033, Mar. 31, 1992). Whether the expressive materials have an objection to the existence of such objection should be determined by taking into account not only the overall contents of the expressive materials, but also all the circumstances such as the motive for the production, the form of the expressive act, the external relation, and the situation at the time of the expressive act (see Supreme Court Decision 96Do1817, Feb. 28, 1997).

With respect to the contents of the book of this case, only some copies of the book of this case which copied only the above part of the book of this case among the book of this case in the first instance court and the court below's decision were admitted as evidence, and the contents of the book of this case are acknowledged as facts. The facts acknowledged above are hard to see that there are active and aggressive contents threatening the existence and security of the Republic of Korea and democratic fundamental order, and therefore, it is difficult to see that the book of this case should be liquidated in which the book of this case is controlled by the colonial shock pressure regime, such as the judgment of the court below, immediately from the above facts acknowledged as above, it is difficult to recognize as pro-enemy pro-enemy pro-enemy contents based on the argument of the North Korean public pro-enemy group that instigates the South Korean violence revolution.

Thus, the court below, which is a fact-finding court, should investigate in detail what kind of expression can be determined in order to recognize the book of this case as pro-enemy contents, and the prosecutor's indictment content should also be pointed out. The court below's decision that recognized the book of this case as pro-enemy contents without any specific factual attempt, has committed an unlawful act of misunderstanding the legal principles as to pro-enemy contents or misunderstanding the facts due to not sufficient deliberation, and it is obvious that such an error affected the judgment.

In this respect, the appeal is well-grounded.

On the third ground for appeal

The National Security Act, which aims to secure the security of the State and the lives and freedom of citizens by regulating anti-state activities that may endanger the national security, cannot be deemed as a law in violation of the Constitution or a malicious law contrary to social justice. This principle is the preamble and Articles 4 and 5 of the Constitution of the Republic of Korea declared the principles of international peace and peaceful unification, as well as North Korea simultaneously joined the United Nations and approved as a sovereign state in the international community, and even if the Inter-Korean Exchange and Cooperation Act is in force in order to promote mutual exchange and cooperation between South and North Korea, this part of the grounds for appeal asserted to the effect that the defendant is innocent is not acceptable.

Therefore, the judgment of the court below on the violation of the National Security Act due to the joining of the pro-enemy organization and the acquisition of pro-enemy materials among the facts charged in this case against the defendant cannot be maintained. Since the court below found the defendant guilty of all the facts charged different from this part and sentenced a single punishment on the ground that it constitutes a substantive concurrent crime under the former part of Article 37 of the Criminal Act, the judgment of the court below shall not

Therefore, without determining the remaining grounds of appeal on unfair sentencing, all the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Jae-hee (Presiding Justice)