[1] Whether Article 7 of the National Security Act is against the principle of no punishment without law (negative)

[2] Whether "worker political activity center" is a dual organization (affirmative)

[3] In a case where a member of an immigration organization discussed in concert with the activities of an anti-government organization, whether the crime of assistance under Article 7 (1) of the National Security Act is established in addition to the crime of dual organization composition or joining (affirmative)

[1] The principle of international peace and peaceful unification declared by the Constitution in Articles 4 and 5 is premised on the premise that it does not harm the Daejeon system of the Constitution of the Republic of Korea, which is the fundamental order of free democracy. Thus, even if North Korea has not yet shown out clear signs that it has renounced the fundamental order of free democracy in our society with military power, and rather, it cannot be deemed as a violation of the National Security Act, which aims to secure national security and the lives and freedom of citizens by regulating anti-state activities that threaten the basic order of free democracy under the clear circumstances where our country threatens the basic order of free democracy, and thus, it cannot be deemed that the concept of the elements of organization of crime under Article 7 of the National Security Act is ambiguous and broad, thus infringing on the essential contents of the principle of no punishment without the law.

[2] The "worker's Political Activity Center" is an anti-government organization which instigates the socialist revolution in the Republic of Korea, and has the substance of an organization with a strong command system, and thus constitutes an anti-government organization under Article 7 (3) of the National Security Act, which threatens the existence and security of the State or democratic fundamental order.

[3] Since it cannot be determined that there is no possibility of dissemination even if it is an internal member of a dual organization, in a case where discussions about the activities of an anti-government organization have been developed with the gathering of members of a dual organization, if such discussions cannot be evaluated as a dual activity, such discussions cannot be viewed as not a dual activity solely on the ground that they are separate issues or discussions among members of an anti-government organization. In addition, insofar as the dual organization or membership of an anti-government organization is an immediate crime, since the crime is established, it cannot be seen that the dual activity is absorption therefrom. Thus, if a dual act under Article 7 (1) of the National Security Act, such as the formation of an anti-state organization or participation of an anti-government organization, is conducted for the accomplishment of its purpose, it shall be deemed that there is a substantive concurrent relation as a separate crime from the crime of forming an anti-state organization or joining an anti-government organization.

[1] Article 12 of the Constitution, Article 7 of the National Security Act / [2] Article 7 (3) of the National Security Act / [3] Article 7 (1) of the National Security Act

[1] Supreme Court Decision 94Do930 delivered on September 26, 1993 (Gong1993Ha, 3008), Supreme Court Decision 94Do930 delivered on May 24, 1994 (Gong1994Ha, 1871), Supreme Court Decision 96Do2673 delivered on December 23, 1996 (Gong197Sang, 583), Supreme Court Decision 96Do2696 delivered on May 16, 1997 (Gong197Sang, 1802) / [2] Supreme Court Decision 93Do2851 delivered on January 28, 1994 / [3] Supreme Court Decision 80Do2570 delivered on December 23, 1980

Defendant

Prosecutor and Defendant

Seoul High Court Decision 95No2801 delivered on May 16, 1996

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the violation of the principle of no punishment without law

The principle of international peace and peaceful unification, which is declared in the preamble and Articles 4 and 5 of the Constitution, is premised on the premise that it does not harm the Daejeon of the Constitution of the Republic of Korea, which is the fundamental order of free democracy. Thus, even if there is no clear sign that North Korea has renounced the fundamental order of free democracy in our society with military force, it cannot be seen as a violation of the National Security Act with the aim of securing the security of the State and the survival and freedom of the people by regulating anti-state activities that threaten our free democratic basic order under the clear circumstances under which our security is threatened, and thus, it cannot be seen as a violation of the Constitution of the Republic of Korea with the aim of securing the security of the State and the freedom of the people. In a reasonable interpretation of the provisions of the National Security Act in light of its purpose, the concept of the constituent elements of crime under Article 7 of the National Security Act is vague and broad and broad (see Supreme Court Decision 96Do2673, Dec. 23, 196).

B. As to whether there is a dual organization and admission

According to the reasoning of the judgment below, the court below established an anti-government organization with the power of workers at the 1st century as a temporary government of the Republic of Korea, confiscated large factories without compensation, nationalization of all land, etc., and recognized the reality of the Republic of Korea as a society where workers' dictatorship and dictatorshipship are de facto, and determined that the defendant has an anti-government organization as part of the anti-government organization's activities, such as the establishment of an anti-government organization's political research and development, and that the defendant has an anti-government organization's right to participate in the production and development of an anti-government organization and the establishment of an anti-government organization's socialist organization's socialist activities under the control of workers by aggressive methods, etc., and that the defendant continued to engage in such activities as an anti-government organization's participation in the production and development of an anti-government organization's political research and development, and that he/she has a certain organization's own secret and non-government workers' participation in the production and development of an anti-government organization.

In light of the records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence, or there is no error of law by misunderstanding the legal principles as to the act of joining an immigration organization under Article 7 (3) of the National Security Act. The grounds for appeal pointing this out

C. As to possession of pro-enemy materials

According to the reasoning of the judgment below, the court below affirmed the socialism revolution in our society, such as the fact that the Defendant received from Nonindicted 1, 2, and 3, or copied and possessed them at the labor union office of Taechip, Inc., Ltd., which is a constituent element of the Defendant’s work, in the “workers’ political activity center” office, etc., the Defendant recognized the reality of the Republic of Korea as a society of the decilation regime and the exclusive occupation of the Republic of Korea, and fundamentally denied the economic ideology of capitalism, and the Defendant applied the aforementioned anti-government organization’s work experience and the purpose of using the ideology and organization activities as an organization of the above Taechip, Inc., Ltd., which is the foundation of the Republic of Korea, in light of the fact that the Defendant applied the above anti-government organization’s 100s and the above 7th class of the workers with the aim of suppressing and taking the class of workers from the rank of workers, and that the Defendant formed a genuine labor compromise.

In light of the records, the above fact-finding and decision of the court below are just, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to the dual purpose under Article 7 (5) of the National Security Act. Further, the court below's recognition of the dual purpose by the defendant for the above reasons cannot be deemed as infringing on the freedom of ideas and conscience guaranteed under the Constitution. The grounds for appeal related to this point are not acceptable.

2. As to the Prosecutor’s Grounds of Appeal

According to the reasoning of the judgment below, in order to establish the so-called expression crime under Article 7 (1) of the National Security Act, first, the contents of the expression should be specific "specific" to harm the existence and security of the nation or the fundamental order of free democracy. Second, the above expression act is likely to spread or spread the anti-state activity. Thus, the above expression act of the nature constitutes an expression crime under Article 7 (1) only in cases where the person who is likely to newly spread the anti-state activity is directly or indirectly a party to the above act, and it cannot be deemed that there is a new possibility of spreading the activities of the anti-government organization, and it cannot be deemed that there is a new possibility of spreading the activities of the anti-government organization, and thus, it cannot be said that there is a new provision on punishment for the crime under Article 7 (1) of the National Security Act, which is more likely to increase the punishment for the act of the anti-government organization than the act of the anti-government organization, and thus, it cannot be interpreted that it is more likely to increase the punishment for the crime under Article 7 (1).

However, even if it is a dual activity among internal members of a dual organization, it cannot be concluded that there is no possibility of dissemination thereof. Thus, if the debate itself cannot be evaluated as a dual activity, it is difficult to view it as not a dual activity solely for the reason that it is a separate issue or a debate among the members of a dual organization. In addition, if the dual organization or the crime of joining is an immediate crime, since the crime is established, it cannot be deemed that the dual activity thereafter is absorption. Thus, if a member of a dual organization engages in a dual activity under Article 7 (1) of the National Security Act, such as participating in an anti-state activity for the accomplishment of the purpose of the organization, it shall be deemed that there is a substantive concurrent relation as a separate crime (see Supreme Court Decision 80Do2570, Dec. 23, 1980).

The judgment of the court below that made a different opinion is erroneous in the misunderstanding of legal principles as to the crime of aiding and abetting anti-government organizations under Article 7 (1) of the National Security Act, and it has influenced the judgment. The ground of appeal pointing this out has merit.

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

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

Justices Park Jong-chul (Presiding Justice)