2016Do11597 Violation of the National Security Act (Assembly, communication, etc.), and violation of the National Security Act (praise, etc.);

Rubber etc.)

A person shall be appointed.

Defendant and Prosecutor

Law Firm B

Attorney LH, MG, C, MH, MI

Seoul Central District Court Decision 2015No2544 Decided July 14, 2016

July 11, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that there was no error in the process of executing a warrant of search and seizure of the instant e-mail, etc. conducted by the investigative agency in the Vienna Co., Ltd. (hereinafter “NHN”), and that the identity and integrity is recognized between the original and the e-mail, etc. stored in the e-mail, etc. stored in the NHN from the NHN, and the e-mail, etc. stored in the NHN server.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal doctrine regarding admissibility of evidence, such as e-mail, and search and seizure of electronic information.

B. Regarding ground of appeal No. 2

Article 8 (1) of the National Security Act provides that a person who contacts with a member of an anti-government organization or a person who is subject to its order by means of meeting, communication, or other means, knowing that it may endanger the existence and security of the State or democratic fundamental order, shall be punished by imprisonment for not more than ten years.

The crime of meeting, communication, etc. under the above provision is established when, knowing the fact that it may endanger the existence and security of the State or democratic fundamental order, contact is made with members of an anti-government organization or persons under its order by means of meeting, communication, or other means, and the act of meeting, etc. is obviously dangerous to the existence and security of the State or democratic fundamental order (Supreme Court Decision 2008.

4. The Supreme Court en banc Decision 2003Do758 Decided 17.

On the other hand, whether an actor was aware of such a fact ought to be objectively determined by comprehensively taking account of the developments leading up to contact, such as meeting and communication, the contents of conversation and communication, and the situation before and after such contact, etc. If there is sufficient awareness that the act may be perceived or endangering the existence and security of the State or democratic fundamental order, and it does not need to be aimed at or intended for the benefit of anti-government organizations (see, e.g., Supreme Court Decisions 2003Do2209, Sept. 26, 200; 201Do9094, Oct. 13, 201).

For the reasons indicated in its reasoning, the lower court determined that the Defendant met with the members of North Korea and Y, an anti-government organization, under the circumstance that: (a) the Defendant met Y members A at the time of visiting Japan during the purpose of gathering North Korea from October 30, 2007 to November 3, 2007; (b) from June 19, 201 to June 23, 2011; and (c) at the time of visiting Japan, Y members AW; (b) the Defendant met Y members AW at the time of visiting Japan.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal doctrine on meetings under the National Security Act by misapprehending the bounds of the principle of free evaluation of evidence

C. In order to be recognized as pro-enemy contents under the National Security Act, the contents of the pro-enemy contents should be active and aggressive to threaten the nation’s existence and security and free democratic fundamental order, which is the legal interest of the National Security Act. Furthermore, the determination of whether the contents of the pro-enemy contents have such an objection ought to be made by taking into account not only the whole contents of the expressive materials, but also the motive for the production, mode of expression itself, external activities, matters related to the organization, and current circumstances at the time of the election. The crime of violating the National Security Act (e.g., praise, encouragement, etc.) arising from the production, distribution, and possession of pro-enemy contents is an element of pro-enemy act. The prosecutor must prove that the act was a pro-enemy act solely on the basis of the fact that the actor was aware of the above act, and there is no direct evidence to prove that the act was a pro-enemy act. In addition to the various circumstances that constitute a pro-enemy act, the lower court determined that the Defendant’s 10th activity and the Defendant’s 20th activity.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on distribution of pro-enemy materials under the National Security Act by misapprehending the bounds of the principle

D. Regarding ground of appeal No. 4

For the reasons indicated in its reasoning, the lower court determined that the Defendant possessed pro-enemy materials for the purpose of assisting in the activities of anti-government organizations, knowing that the Defendant possessed the tasks to enhance the role of the national media in North, South, and North Korea, and foreign M&W (No. 9), and that it would endanger the nation’s existence and security or democratic fundamental order.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the possession of pro-enemy materials under the National Security Act, beyond the bounds of the principle

2. As to the Prosecutor’s ground of appeal

A. As to the first argument in the grounds of appeal

For the reasons indicated in its holding, the lower court reversed the first instance judgment convicting the Defendant of this part of the charges, and acquitted the Defendant on the charge, on the ground that it is difficult to conclude that the act of sending the article Plaintiff in the BA’s preparation to AW on August 14, 2007, which will be inserted in FFT 207, by e-mail, has an obvious risk of substantial harm to the national existence and security of the State or democratic fundamental order.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the

B. As to the second argument in the grounds of appeal

For reasons indicated in its holding, the lower court determined as follows: (a) as to S, the publication of the F Z in April 2008; (b) D Gangwon Headquarters E (Seoul); (c) lectures by H Students’ Committee; (d) lectures by KJ; (b) lectures by Jlsan City and D Ulsan District Headquarters; (c) lectures by 04 weeks; (d) lectures by Annyang Mate, Annyang-si, Annyang-si, Annyang-si; (e) lectures by P in November 2010; (e) and books published in Q Q Qu; and (e) the production and dissemination of respective anti-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the production and distribution of pro-enemy materials under the National Security Act, by misapprehending the bounds of

3. Conclusion

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

Justices Park Jung-hwa

Justices Kim Gin-deok

Justices Park Sang-ok

Justices Lee Dong-won