2011No772 A. Violation of the National Security Act (Formation, etc. of a foreign organization)

(b) Violation of the National Security Act (praise, rubber, etc.);

(c) Violation of the National Security Act (association, communication, etc.);

1.(a)(c) A;

2.(a) B

3.(a)(b) C.

Defendant A, C, and Prosecutor (Defendants)

Embia

Attorney GD (Defendant A and B)

Attorney GS (PS for the defendant C)

Seoul Central District Court Decision 2010Gohap1102, 2010 Decided February 23, 201

1208(Joint Judgment) Judgment

September 22, 2011

All appeals filed by Defendant A and C and prosecutor against the Defendants are dismissed.

1. Determination on the grounds for appeal

A. misunderstanding of facts or misunderstanding of legal principles

(1) Defendant A, C

(a) Common grounds for appeal

1) As to the assertion that North Korea is not an anti-government organization

Although North Korea is a partner of dialogue and cooperation for the peaceful unification of South and North Korea, despite changes in the relationship between South and North Korea, North Korea still has the character of anti-government organization that is bound to reverse our liberal democracy system while enhancing the hostile unification route, and therefore, the normative power of the National Security Act that regulates anti-government organizations, etc. is still valid (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008; Supreme Court Decision 2010Do189, Jul. 23, 2010; Supreme Court Decision 2007Do10121, Dec. 9, 2010; Supreme Court Decision 2009Do9152, Jul. 28, 2011).

As alleged in the grounds of appeal, the fact that North Korea has joined the United Nations in the name of the Democratic People's Republic of Korea is an international political practice and a common view in international law that it cannot be deemed that there has been a national approval among other members of the United Nations, as a matter of course, on the sole basis of the fact that North Korea has joined the United Nations in the name of the Democratic People's Republic of Korea. Moreover, the existing South-North Korean agreements, the South-North Korean ordinary summits, the South-North Joint Declarations of South and North Korea, and the economic cooperation between South and North Korea cannot be treated as an independent country under international law and domestic law. Legal relations between South and North Korea shall be determined in accordance with the Constitution and laws of Korea, and North Korea shall not be regarded as an independent country that is similar to South Korea in all areas, such as politics, economy

In the same purport, the court below is correct to determine North Korea as an anti-government organization and there is no violation of law as alleged in the grounds of appeal.

2) As to the assertion that D is not a dual organization

Article 7(1) and (3) of the National Security Act refers to continuing and independent combinations formed by a specific number of people for the purpose of praiseing, encouraging, promoting, promoting, or aiding and abetting the activities of anti-government organizations or their members or those who are ordered to do so (hereinafter referred to as "government organizations, etc.") with the knowledge of the fact that such acts may endanger the existence and security of the State or democratic fundamental order. Such interpretation of the elements of a crime of dualizing and joining the State refers to the purpose of the National Security Act (Article 1(1) of the same Act) and the term "in interpreting and applying this Act, it shall be limited to the minimum extent necessary to achieve the purpose of this Act, and it shall not be permitted to expand the scope of the basic order of the National Security Act or unfairly restrict the fundamental human rights of the people, which is guaranteed by the Constitution, in light of the basic principles of interpretation and publicity (see Article 1(2) of the National Security Act or the basic principles of no provision of no provision or provision of no provision or provision of no provision or provision of no provision or provision or provision of no provision or provision.

The term "organization of an organization which aims to commit an act under Article 7 (3) of the National Security Act" means the formation of an organization to which its members recognize that an act they intend to commit objectively may benefit from an anti-government organization, and in this case, as in paragraph (1) of the same Article, it does not require any awareness to the members of the organization for the purpose of benefit of an anti-government organization. The organization whose purpose is to commit a crime is to commit a crime is a continuous combination created for a common purpose that multiple persons commit a certain crime, and is established by having a minimum common system leading the organization (see Supreme Court Decision 86Do1784, Oct. 28, 1986). It refers to a combination equipped with a system such as a certain deceptive scheme and allocation to maintain internal order between two or more specified persons and to lead the organization (see Supreme Court Decision 86Do1784, Oct. 28, 198).

With regard to D (hereinafter referred to as "D"), the court below recognized D as a pro rata organization with the purport that it is sufficient to regard D as a pro rata organization, in full view of the following facts: (a) the connection with anti-government organization; (b) the rules and rules; (c) the content of its activities; (d) the direction-oriented system; and (d) the division of roles among members, etc.; and (e) it is sufficient to regard D as a pro rata organization, which helps, encourage, promote, or promote the activities of North Korea or its members or its members; and (e) its actual activities are also constituted a pro rata organization with the risk of causing substantial harm and harm to the nation’s existence and security and free democratic fundamental order. Examining the relevant evidence in comparison with the records based on the aforementioned legal principles, the court below’s fact-finding and judgment is proper; and (e) contrary to the allegations in the grounds for appeal, since D was reported by the competent police station and did not take measures to prohibit regular anti-U.S. assemblies held, even if its members are merely ten persons.

The judgment below does not contain any error as alleged in the grounds for appeal.

3) As to the assertion related to the establishment of the crime of the same Article through the holding of a downtown regular meeting

The court below found Defendant A and C guilty of this part of the facts charged on the part of the facts charged that the act of Defendant A and C attended a majority of the anti-U.S. conference led by D as the core member of the anti-U.S. organization and sold usfk as the occupied military unit, and made statements claiming the unification of the U.S. military forces or federal systems, which led to an apparent risk of substantial harm to the nation’s existence and security or free democratic fundamental order, as it expresses an external intent to comply with the activities of North Korea, which is an anti-government organization. In comparison with the record on the basis of relevant legal principles, the court below’s recognition and determination is acceptable, and there is no error of law

(B) Individual grounds for appeal

1) Defendant A

A) As to the assertion regarding the establishment of a crime of meeting through H et al.

The crime of meeting and communication under Article 8 (1) of the National Security Act is established when, with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, contact is made with a member of an anti-government organization or a person under its order by meeting, communication, or any other means. In this case, the act of meeting and communication is established when there is an obvious danger that the act of meeting and communication may cause substantial harm to the national existence and security or democratic fundamental order (see Supreme Court en banc Decision 200

In accordance with the Supreme Court precedents that held that G (i.e., ‘G') is an anti-government organization, the court below recognized that Defendant A consulted in Japan with the former president H of G in order to secure operation funds of D, and that Defendant F, the president of E (i.e., ‘E') who works in China under North Korea's order, and Defendant A, the president of E (i.e., ‘E') who works in China under North Korea's order four times, and held that each act constitutes a crime of meeting under the National Security Act.

In light of the relevant evidence, the fact-finding by the court below is acceptable, and it is sufficient to view that each of the above acts by the defendant A was aware of the fact that there is a clear danger that such act may cause substantial harm to the national existence and security or democratic fundamental order, and that the defendant A also knew that such act may endanger the national existence and security or democratic fundamental order.

The judgment below does not contain any error as alleged in the grounds for appeal.

B) As to the assertion regarding whether the crime of the same Article was established through BO removal farming

The lower court determined that Defendant A’s act committed in concert with the activities of North Korea, which is an anti-government organization, by taking the lead of the removal and farming of BO in five times as the chairman of the JJ, reading out the press notes, written names, etc. as stated in its reasoning.

Examining the records based on the relevant legal principles, the recognition and judgment of the court below is acceptable, and there is no violation of law as alleged in the grounds of appeal.

2) Defendant C.

A) With respect to the argument that the trial progress of the court below infringed the right of pleading in an unfair and unfair manner, this part of the argument is only made after the deadline for submitting the statement of grounds for appeal expires, and the adoption of the court as evidence may not be examined in cases where it is deemed necessary by the court as the discretion of the court (see Supreme Court Decision 2003Do3282, Oct. 10, 2003). Thus, even if the court did not adopt the application for examination of evidence, such circumstance alone does not lead to unfair trial proceedings or infringement of the right of pleading. Rather, according to the records, the defendant C withdraws from the court below's request for the issuance of a certified copy of the argument through a public defender and the request for a witness, and there is no need for the examination of each evidence. This part of the defendant C'

B) In order to recognize the assertion related to the establishment of the crime of distributing pro-enemy contents as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the nation’s existence and security and the free democratic fundamental order, which is the legal interest protected by the National Security Act. Whether the expressive materials have an objection to the existence of such objection should be determined not only by the whole contents of the expressive materials, but also by taking into account all the circumstances, such as the motive for the production thereof, the form of the expressive act itself, the external relation, and the current situation at the present time (see, e.g., Supreme Court Decisions 2008Do9163, Jan. 30, 2009; 2008Do2912, Oct. 29, 200

In light of the above legal principles and records, the court below's determination that each expression of crime list (5) attached to the judgment below is active and aggressive which threatens the existence and security of the nation and the free democratic basic order, and it is just to recognize that this constitutes pro-enemy contents under the National Security Act beyond the limit of freedom of expression.

Furthermore, it should not be presumed that an actor committed a pro-enemy act solely with the fact that he/she committed an act stipulated in Article 7(5) of the National Security Act with knowledge that he/she was a pro-enemy pro-enemy act. In this case, if there is no direct evidence to prove that he/she committed a pro-enemy act, in addition to the various circumstances that constitute a pro-enemy act, he/she can be determined by comprehensively taking into account indirect facts, such as the Defendant’s career and status, background and circumstance leading the Defendant to commit an act stipulated in paragraph (5) in relation to pro-enemy act, whether the Defendant was a pro-enemy act, whether the Defendant joined a pro-enemy act, and the relationship between the pro-enemy organization to which

Defendant C prepared each of the above representations while working as a foreign organization D’s leader, and compared with the above legal principles, the preparation process and contents of each of the above representations made by the lower court. Defendant C is recognized as distributing each of the above representations by posting them on the Internet website bulletin for the purpose of dualization. Thus, the lower court’s determination to the same effect is correct.

(2) The Prosecutor’s assertion as to the acquittal part on Defendant B

(A) As to the assertion that he/she was aware that he/she was an immigration organization

The lower court determined that Defendant B was admitted as having joined a foreign organization without knowing that it was a foreign organization in light of the lack of evidence to acknowledge that Defendant B joined the foreign organization with the knowledge of its existence, and rather, various circumstances as indicated in its reasoning.

In light of the records, the judgment of the court below is justified and there is no violation of law as alleged in the grounds of appeal.

(B) As to the assertion that the distribution constitutes the distribution aimed at the act of transfer

The lower court determined that there was a lack of proof as to the existence of the purpose of transfer to Defendant B in light of various circumstances as indicated in its reasoning, including the fact that there was a change in the appeal that Defendant B collected comments to refer them to the reporter’s duties on the D website, which was not actually used after Defendant B’s Internet car page occurred.

In light of the records, such determination by the court below shall not be deemed to be inconsistent with the recognition of the guilty portion as alleged in the grounds of appeal.

B. Unreasonable sentencing

In light of the circumstances favorable to or unfavorable to the Defendants, the lower court’s holding that: (a) the Defendant A was sentenced to a suspended sentence of three-year imprisonment; (b) three-year suspension of qualifications; (c) three-year suspension of qualifications; (d) one and half-year suspension of qualifications; (e) two and half-year suspension of qualifications to Defendant C; and (e) two and half-year suspension of qualifications to be sentenced to a suspended sentence of three-year suspension of qualifications to Defendant A; and (e) one and half-year suspension of qualifications to Defendant C, as alleged by Defendant A and C;

2. Conclusion

The appeal filed by Defendant A and C and the appeal filed by the Prosecutor against the Defendants is dismissed in entirety on the grounds that the appeal is without merit.

Maximum Judge of the presiding judge

Judges Nown Korea

Judges Dok-woo