(영문) 대법원 2015.3.26.선고 2011도13066 판결

1. In order to be recognized as pro-enemy contents under the National Security Act, the contents must be active and aggressive to threaten the nation’s existence and security and the free democratic fundamental order, which is the protected legal interest of the National Security Act. Whether the contents of the expressive materials have such an objection should be determined not only by the overall contents of the expressive materials, but also by taking into account all the circumstances, such as the motive for production, mode of expression itself, matters related to the outside, and the situation at the time of expressive act. In addition, the crime under Article 7(5) of the National Security Act is the so-called-called-called purpose crime, as it is producing, importing, copying, carrying, distributing, selling, or acquiring documents, paintings, and other expressive materials for the purpose of pro-enemy activities under Articles 1, 3, and 4, and its purpose is separately required to establish a crime, and even if the actor knew the suitability of the expressive materials and committed an act under paragraph (5), it does not constitute an act of pro-enemy contents unless it is recognized.

2. As to the facts charged in the case where the Defendant acquired, possessed, or distributed 10 pro-enemy contents, the lower court affirmed the first instance judgment that acquitted the Defendant on the ground that: (a) each of the above facts charged included part similar to the North Korea’s assertion, such as the anti-U.S. and anti-U.S. dollars, the number of the U.S. dollars, the abolition of the National Security Act, and the legalization of the pro-enemy organization; (b) in light of the circumstances stated in its reasoning, each of the above facts cannot be deemed to constitute pro-enemy contents that threaten the nation’s existence and security and free democratic fundamental order; and (c) in the case of the expressive materials described in paragraph (9) of the facts charged, even if the above facts constitute pro-enemy contents, it is difficult to view that the Defendant had a pro-enemy act in light of all the circumstances, such as the Defendant’s career and status, the contents of the past, and the process of acquiring

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to pro-enemy contents or pro-enemy.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.