[1] The case holding that the act of aiding and abetting North Korean activities constitutes an act of aiding and abetting North Korea by attending the organization ceremony of the South Korean co-ordination headquarters

[2] Criteria for determining pro-enemy contents

[3] The meaning of the dual purpose under Article 7 (5) of the National Security Act

[4] The scope of reversal of the judgment of the appellate court which found a partial guilty of concurrent crimes under the former part of Article 37 of the Criminal Code and acquitted a part of the facts charged, where both parties filed an appeal, but the prosecutor's appeal only has merit

[1] The case holding that if the South and North Korea Republic of Korea attended the formation ceremony of the South and North Korea Republic of Korea, and read the materials in which letters, lectures, bylaws, etc. are printed, and agreed to approve and adopt it, it constitutes a case where the activities of anti-government organizations, which are anti-government organizations, are praised and acted in the activities of North Korea, with the knowledge that it would endanger the national existence and security or the fundamental order of free democracy, such as selling them as anti-government unification policies aimed at the unification of the South and North Korea Republic of Korea, and establishing a unification scheme, and that it is more clear that the federal regime of the Republic of Korea is capable of achieving national unification as a means of unification, and that it is far away from the struggle for the realization of the federal unification nation, and that it constitutes a case where the activities of anti-government organizations, which are anti-government organizations, are committed by praise and acting in the activities of North Korea, such as an anti-government policy aimed at the unification of the government's unification and the abolition of the national security.

[2] If the contents of a expressive material are active and aggressive expressions threatening the existence and security of the State and democratic fundamental order, which are protected under the National Security Act, it goes beyond the limit of the freedom of expression. Whether the expressive material has such an objection shall be determined not only by the overall contents of the expressive material, but also by taking into account all the circumstances, such as the motive for preparation, the form of the expressive act itself and matters related to the external and external aspects, and

[3] Article 7(5) of the National Security Act provides that the purpose of the act under Paragraph (1), (3), or (4) does not need to be the active desire or conclusive recognition of the act, and it satisfies with dolusent recognition. Thus, the contents of the expression must be objectively viewed to contain the aptitude of the act, such as acting in concert with North Korea's activities such as public relations and inciting North Korea, which is an anti-government organization. Furthermore, the elements of the act are satisfied if there is a dolusive perception that such an act may become a dual act. In addition, if the expression was acquired or possessed after being aware of such awareness, it is objectively that the act would be a dual act, and therefore, it is presumed that the act would be an anti-government organization, and therefore, it satisfies the requirements for an excessive subjective element of the act, unless it appears that there was no such objective as solely academic research, profit-making pursuit, or defense.

[4] A part of the appellate court's judgment of conviction and a part of the judgment of acquittal, and both the defendant and the prosecutor filed an appeal against the judgment of acquittal. However, where the defendant's appeal against the guilty part is without merit and only the prosecutor's appeal against the acquittal part is justified, if the crime which the appellate court found guilty and the crime of not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment of the appellate court shall also be reversed together

[1] Article 7 (1) of the National Security Act / [2] Article 7 (5) of the National Security Act / [3] Article 7 (5) of the National Security Act / [4] Article 37 of the Criminal Act, Articles 342, 384, and 391 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 96Do2696 delivered on May 16, 1997 (Gong1997Sang, 1802) / [2] Supreme Court en banc Decision 90Do203 delivered on March 31, 1992 (Gong1992, 1466) / [2] Supreme Court Decision 95Do1035 delivered on December 23, 1996 (Gong1997Sang, 559) / [3] Supreme Court Decision 96Do1817 delivered on February 28, 1997 (Gong1997Sang, 126) / [3] Supreme Court Decision 91Do3279 delivered on March 31, 1992 (Gong1992, 1942, 195Do19499 delivered on July 195, 195) / [3] Supreme Court en banc Decision 96Do19945 delivered on May 19694, 1959694.

Defendant 3

Prosecutor and Defendant

Gwangju District Court Decision 96No706 delivered on September 20, 1996

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

We examine the grounds of appeal.

1. Judgment on the Defendant’s grounds of appeal

A. As to the violation of Article 7 (1) of the National Security Act

According to the reasoning of the judgment below and the judgment of the court of first instance as cited by the court below, the court below approved and adopted the following: the defendant was sentenced to two years of imprisonment for the violation of the National Security Act on October 13, 1994 on the grounds of the composition of the so-called Korean Unification Korean Union (hereinafter referred to as the "Korean People Association"), the so-called Lee Jong-nam National Association, and three years of suspension of qualifications for three years, and was sentenced to a suspended sentence of three years on February 25, 1995, the suspension of qualifications for four months, after attending the formation ceremony of the South Korean People's Republic of Korea on February 25, 1995. The court below approved and approved by the unanimous consent of all participants by reading the materials printed on the formation declaration, the 700,000,000, the letter of organization declaration, the lecture, and the rules, etc., and recognized that only the national unification can be achieved as a means of the federal system, and that it was far away from the era for the realization of the national unification of North Korea's government.

In light of the records, the above fact-finding by the court below is just, and there is no error of law as pointed out in the arguments. There is no ground for appeal.

B. As to the violation of Article 7 (5) and (1) of the National Security Act

According to the reasoning of the judgment of the court below and the court of first instance cited by the court below, the court below affirmed the judgment of the court of first instance convicting the defendant of the facts charged that the defendant acquired and possessed the above expressive materials only for academic research, on the ground that it is difficult to view the above expressive materials as being acquired and possessed solely for academic research, on the ground that the content of the above expressive materials in this case (the "name", "the first proposal for the evaluation of the business for the first half of 95," and "the business plan for the implementation of the resolution of the sixth Korean National Assembly" was objectively recognized to be common to North Korea's strategy or the unification route accordingly, and therefore, it is recognized that the defendant who acquired and possessed the above expressive materials could be subject to a dual act while recognizing that they are expressive materials.

In light of the records, the above measures of the court below are just, and there is no error of law as pointed out in the paper. There is no ground for appeal.

C. As to the part related to the demonstration

In light of the records, the court below's decision that recognized the defendant's participation in an outdoor assembly or demonstration held from March 8, 1995 to November 30 of the same day without reporting to the authorities in the front of the Gwangju Correctional Institution is just, and there is no error of law as pointed out in the arguments. There is no ground for appeal.

2. Judgment on the grounds of appeal by the prosecutor

A. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant of the violation of Article 7 (5) and (1) of the National Security Act among the charges of this case against the defendant on the ground that it cannot be deemed that the defendant acquired and possessed the above expressive materials for the purpose of praiseing and aiding the activities of North Korea with the knowledge that it would endanger the national existence and security or the fundamental order of free democracy, and that there is no other evidence to acknowledge it.

B. However, we cannot accept the above determination by the court below for the following reasons.

If the contents of the expressive materials are active and aggressive expressions threatening the existence and security of the State and the free democratic fundamental order, which are protected under the National Security Act, they exceed the bounds of the freedom of expression. Whether such expressive materials have an objection to the existence or absence of an objection thereto shall 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 thereof, the form and external relation with the expressive act, and the situation at the time of the expressive act (see, e.g., Supreme Court en banc Decision 90Do203, Mar. 31, 1992; 96Do1817, Feb. 28, 1997

According to the records, the above 'Emblance of life of anti-government organizations' is composed of 7 anti-government organizations, and the above 'Emblance of life of anti-government organizations', and 'Emblance of life of North Korea Kim Jong-won' was administered to the student movement and youth movement at the age of early 9, and was flicked to the country's independence and unification. He also contributed to the movement of farmers at the core point of agriculture in the area of Gwangju and South Korea, and 90s after the 190s, he appeared as an anti-government organization, and she was flickly flickly flickly flicked by the North Korean government, and flickly flickly flickly flicked by the North Korean government's 9th century, and flickly flicked by the North Korean government's flurgy's activities for the unification of the 90s.

Meanwhile, the purpose of Article 7 (5) of the National Security Act is not to make positive or conclusive perceptions about the acts under Paragraph (1), (3), or (4) and it can be satisfied with dolusent perceptions. Thus, the contents of the expressive materials are objectively recognized to contain the aptitude of acting in concert with North Korea's activities, such as publicity and inciting North Korea, which is an anti-government organization. Furthermore, if the expressive materials contain the aptitude of acting in concert with North Korea, which is an anti-government organization, are objectively recognized, the elements of the act are satisfied. In addition, if the expressive materials are acquired and possessed after being aware of such awareness from an objective point of view that the act would become an anti-government organization, it is presumed that the act would be a dual act. Therefore, the mere academic research or profit-making trend, and it appears that there was no dual purpose such as that the act was conducted by the anti-government organization, the requirement of excessive element shall be deemed to have been satisfied.

As seen earlier, the above inducements are active and aggressive expressions that act in concert with the activities of the North Korean government organization, which is an anti-government organization. According to the records, the defendant, who was a member of the anti-government organization, was aware that he acquired and possessed them while recognizing the contents of the above inducements that were prepared and sent by the co-government office, which is a pro-government organization. As such, the defendant is presumed to have a dolusive perception that he would have become a pro-enemy, and even upon examining the records of this case, there is no evidence suggesting that there was no pro-enemy purpose, such as that it was caused by academic research, profit-making pursuit, and defense.

Therefore, the decision of the court below which acquitted the defendant on the act of acquiring or possessing the above inducements on the grounds as seen above is erroneous in the misapprehension of legal principles as to pro-enemy pro-enemy materials in national security and pro-enemy purposes, and such unlawful acts are obvious to have affected the conclusion of the judgment. Thus, there is a reason to point this out

3. Accordingly, the part of the judgment of the court below which acquitted the defendant is not exempted from reversal, and there is no ground for appeal on the guilty part of the defendant. However, since the crime which the court below found the defendant guilty and the defendant not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below which acquitted the defendant should also be reversed together with the

Therefore, all of the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)