2010 Inventory 5 Violation of the National Security Act (Spy)

Kim A (42 years old, South)

Defendant

Kim Sung-dong

Law Firm Shin-soo

Attorney Kim Jong-type

Busan District Court Decision 81Gohap819 delivered on December 24, 1981

July 15, 2011

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Progress of judgment;

According to the records, the following facts are recognized.

A. On December 24, 1981, a public prosecution was instituted against the Defendant for violation of the National Security Act, Busan District Court Decision 81Gohap819, which rendered a judgment of 10 years of imprisonment and 10 years of suspension of qualification against the Defendant (hereinafter “the judgment on review of this case”).

B. Accordingly, the Defendant and the prosecutor filed an appeal under the Daegu High Court 82No136. However, the above court dismissed both appeals on April 22, 1982, and thereafter filed an appeal under the Supreme Court 82Do1274 as to the Defendant’s objection, but the Supreme Court sentenced the dismissal of appeal on July 27, 1982 to the Supreme Court, which became final and conclusive.

다. 피고인은 2010. 7. 21. 이 사건 재심대상판결에 대하여 재심청구를 하였다. 이 법원은 2011. 1. 27. 재심개시결정을 하였고, 위 재심개시결정은 그대로 확정되었다. 라. 진실 · 화해를 위한 과거사 정리위원회(이하 '과거사위원회'라고 한다)는 피고인의 신청에 따라 진실규명을 한 결과, 이 사건은 ☆에서 피고인을 국가보안법위반 혐의로 40여 일 동안 영장 없이 구금한 채 고문과 협박을 통해 자백을 강요하고 법원은 범죄사실을 입증할 만한 뚜렷한 증거도 없이 검찰의 공소사실을 인정하여 중형을 선고받게 한 사건으로, 위법한 공권력 행사로 인한 중대한 인권침해 · 조작의혹사건이라는 결론을 내렸다.

2. The facts charged in this case

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

3. Summary of the defendant and defense counsel;

Around August 1970, around August 1970, around August 1973, around April 1974, the Defendant went to Japan to visit his father KimC of the Defendant residing in Japan. Around August 1970, at the time of his visit to Japan, the Defendant provided Park C1 with food by chance at the house of KimC at the time of his visit to Japan, but there was no other fact that Park C1 was met, and even though the Defendant did not commit the instant crime, the Defendant was investigated in a state of illegal confinement for 40 days after he was conducted without a warrant by the competent investigator, and was led to a confession by the adviser and cruel act, and there was no evidence to support the confession of the Defendant, and the Defendant is not guilty.

4. Determination

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

검사는 이 사건 재심 공판절차에서 ① 수사과정에서 작성된 피고인의 진술증거서류 [경찰 및 검찰에서 작성된 피의자신문조서, 진술서, 반성문, 증거목록 순번(이하 '순번'이라 한다) 1, 2, 3, 5, 6, 7, 25, 26, 64번], ② 수사기관에서 작성된 참고인들의 진술증 거서류(경찰 및 검찰에서 작성된 박C2, 신C3, 공C4, 박C5, 박C6, 박C7, 김C8, 박C9, 차C10, 이C11의 각 진술조서 및 진술서, 순번 4, 8 내지 14, 27, 28, 29, 41 내지 45, 58, 60 내지 63번), ③ 수사기관에서 작성한 수사보고, 압수조서(순번 18, 23, 24, 59, 65, 66번), ④ 재심개시결정 전의 공판절차에서 작성된 공판조서와 증인신문조서(순번 30 내지 40, 46 내지 57번), ⑤ 영사증명서(순번 22번), ⑥ 각 선박운항사업면허증(순번 15, 16번), 수입면장(순번 17번), 각 출입국사실증명(순번 19, 20, 21번), 조선소 사업계획서(순번 67번), ★조선소 수정사업계획서(순번 68번), ★조선소 사업진도보고(순번 69번)를 증거로 신청하였다.

(b) Documentary evidence not admissible;

1) As to each protocol of suspect interrogation of the accused prepared by the police, each protocol of suspect interrogation of the accused prepared by the police and each protocol prepared by the accused (No. 1, 2, 3, 5, 6, and 7) of the accused, the accused denies its contents in this court, all of which are inadmissible as evidence.

2) Each protocol of examination of the defendant prepared by the prosecution, and the statement of the defendant's preparation

A) Even though the defendant was not forced to make a confession at the time of being examined before the public prosecutor, if he made a confession without voluntariness due to cruel acts, such as adviser, at the investigation agency before the public prosecutor, and the prosecutor continued to make a confession of the same contents in the investigation stage, the confession before the public prosecutor shall be deemed to be a confession without voluntariness (see Supreme Court Decision 92Do2409, Nov. 24, 1992). Meanwhile, the purport of denying the admissibility of a statement without voluntartariness lies in not only in itself being consistent with the substantial truth, but also in order to prevent the violation of the basic human rights of the person who made the statement from being exposed to the truth and illegal pressure. Thus, if there is a dispute over voluntartariness, the public prosecutor should not prove reasonable and specific facts, but also remove the question of voluntariness, and if the defendant did not have the admissibility of evidence after the public prosecutor’s statement being made without voluntartariness evidence, the admissibility of evidence of 200 evidence.

B) The following facts are acknowledged according to each evidence duly examined in this Court, such as the first instance trial before the Defendant’s commencement of retrial and the appellate trial trial date, each statement in this Court, KimC8’s statement in this Court, each evidence submitted by the defense counsel (including each number) and each evidence submitted by the defense counsel.

① On May 12, 1981, an investigator, who performs the duties of a judicial police officer, took the defendant into his office in a voluntary manner, started an investigation on the charge of violating the National Security Act, and issued a detention warrant on June 23 of the same year, and detained the defendant on the 25th day of the same month. The defendant was investigated in a state of illegal detention for at least 45 days from the day on which the warrant was executed to the day on which the defendant was executed.

② The Defendant, as a result of the first and second examination of the protocol of interrogation of the Defendant by the prosecution, was detained in the underground room for 45 days immediately before the preparation of the interrogation protocol, and was investigated. In particular, the actual contents of the case are as follows: (a) an adviser, such as an adviser, who was assaulted by drinking and sprinking, without being locked for a week from investigators; and (b) an adviser from time to time; (c) was killed, and was all killed while she was killed in North Korea near the break cable. Unless the confession was made, the Defendant was threatened by the threat, such as “I am out of the same spon as his/her width.”

③ The Defendant, prior to the prosecutor’s investigation, cannot be used unless he/she states that he/she was investigated by the investigator. If he/she made a statement in the prosecutor’s office only to the effect that he/she was investigated, he/she had been a relative for a long time, and even if he/she did not make a big case, he/she would make another statement if he/she would make another statement, and would make another statement, and would make the Defendant’s wife, and would make another statement.” The Defendant had a fear that he/she would be allowed to be consulted by the prosecutor’s office when he/she was investigated by the prosecutor, and when he/she was investigated by the prosecutor’s office, he/she had the actual staff.

④ Park C9, as the facts charged in the instant case, had a family member of GinA, who had been investigated by the prosecution, from the investigator who had been investigated by the prosecution. The actual contents of the instant case, which were known as the actual contents of the case, have been contacted. When being investigated by the prosecution, the actual contents of the case had been borne by the investigator, and the actual contents of the case had been investigated as recorded.

C) According to the above facts, each protocol of interrogation of the accused prepared by the prosecution and a statement of reflective nature of the defendant prepared by the prosecutor (No. 25,26,64) shall be admitted as evidence since it is difficult to recognize the voluntariness of the statement as a confession of the same contents because the state of hearing without voluntariness due to harsh acts, such as illegal confinement by the investigative agency, coercion and adviser, is continued, and it cannot be viewed as evidence collected according to lawful procedures.

3) Each statement and written statement of Park C2, Park C5, Park C6, Park C9, Park C4, Park C10, and Lee Da11, prepared by an investigative agency.

Each of the above evidences (Nos. 4, 10, 11, 14, 27, 28, 29, 41 through 45, 58, and 60 through 63) did not agree by the defendant and his defense counsel to be admitted as evidence. In the case of a person who has made a statement at the date of trial and has failed to prove the authenticity of its formation or who has died, the statement or preparation under Article 314 of the Criminal Procedure Act was not proven in a particularly reliable state, and thus, it cannot be admitted as evidence.

4) Of the consular certificate (No. 22) of the Republic of Korea Embassy Park Jong-young’s consular document (No. 22), the remainder except the authorized portion can not be deemed as a transcript or abstract of the family register as provided in Article 315 subparag. 1 of the Criminal Procedure Act, a certified copy or abstract of the family register, a certified copy or abstract thereof as provided in Article 315 subparag. 1 of the said Act, or any other document that can be proved by a public official or a document that can be proved in the course of carrying out his/her official duties, and is engaged in the so-called secret consular organization of North Korea, such as building a foundation for non-conforming activities in North Korea under North Korea’s order, and the police and public security authorities in Japan also tracking the whereabouts and trends of North Korea. Thus, although the consular gambling was prepared in the course of carrying out their official duties, it cannot be deemed as being prepared based on evidential documents and thus, it cannot be deemed as admissible as evidence for the consular evidence prepared under Article 317 subparag. 3 of the Criminal Procedure Act. 207.

5) The investigation report, records of seizure, list of seizure (No. 18, 23, 24, 59, 65, and 66) and defense counsel did not consent to the admissibility of evidence, and all of them cannot be admitted as evidence, since they were not proven by the statement, etc. of the person making the original statement on the date of trial. Whether the facts charged can be admitted solely with the evidence admitted as admissible.

1) Among the documentary evidence documents submitted by a witness examination who is admissible as evidence, evidence is admissible as evidence among the documentary evidence submitted by the relevant investigation agency. ① NewC3, Gong34, Gong37, Gag-C7, 12, and 13, each written statement (No. 8,9, 12, and 13) of the defendant's consent to use as evidence, ② Other documents (No. 15, 16, 17, 19, 20, 21, 21, 67, 68, 69), ③ Trial records and examination records (No. 30, 40, 46, and 57) prepared in the trial before the commencement of a retrial, ④ The defendant and witness Kim C8's written statements remain. We examine whether the facts charged can be admitted only by the above documentary evidence.

2) Determination as to whether the facts charged can be admitted only with the evidence admitted as admissible evidence

살피건대, 이 사건 공소사실에 부합하는 듯한 증거 중 ① 박C5에 대한 증인신문조서는 피고인이 일본에 다녀온 후 생활이 윤택해 진 듯한 인상을 받았고 피고인으로부터 피고인이 박C1을 한 번 만난 적이 있다고 들었다는 내용이고, ② 신C3에 대한 증인신문조서는 피고인의 일본 방문 경위, 피고인이 일본에서 김C로부터 돈을 받아왔고 1974.3.경 김C가 하던 ◆ 주식회사 상호가 주식회사 □으로 변경된 등기부등본을 일본에서 받았다는 내용이며, ③ 차C10에 대한 증인신문조서는 김C가 좌익활동에 가담하였는지는 확실하지 않고 막연히 그러한 느낌만 받았을 뿐이라는 내용이고, ④ 박C6에 대한 증인신문조서는 피고인이 1974. 4.경 박C6 경영 수도카메라점에서 공사장의 중장비 시설을 찍은 사진을 현상해 달라고 부탁하였다는 내용이며, ⑤ 각 출입국사 실증명은 피고인이 1970. 8. 30.부터 1970. 9. 24.까지, 1973. 8. 21.부터 1973. 9. 23.까지, 1974. 4. 20.부터 1974. 7. 18.까지 세차례에 걸쳐 일본에 다녀온 적이 있다는 내용인 바, 위 증거들만으로는 피고인에 대한 위 공소사실을 인정하기에 부족하고, 달리이를 인정할 증거가 없다.

3) Sub-decisions

Therefore, the evidence submitted by the prosecutor to prove the facts charged in the instant case against the Defendant 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.

5. Conclusion

Thus, since all the facts charged against the defendant in this case constitute a case where there is no proof of crime, the defendant shall be acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment shall be publicly announced under Article 440 of the Criminal Procedure Act and Article 58

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

The senior judge of the presiding judge;

A judge Lee Jae-soo

Judges Kim Gin-man