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All appeals are dismissed.
Reasons
The grounds of appeal are examined.
1. Examining the reasoning of the lower judgment on the grounds of appeal by the prosecutor in light of the records, the lower court is justifiable to have determined that Defendant A did not have any evidence of crime regarding the violation of the National Security Act due to the possession of documents, “a task and direction for the nucleicization and peace system” among the facts charged in the instant case, on the grounds as indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the concept
2. As to the Defendants’ grounds of appeal
A. In order to be recognized as pro-enemy contents under the National Security Act, the contents of the expressive materials must be active and aggressive to threaten the nation’s existence and security, which is the legal interest protected under the National Security Act, and the democratic fundamental order. Whether the expressive materials have such an objection shall be determined not only by the overall contents of the expressive materials, but also by taking into account the motive for the production, the form of the expressive act, matters related to the outside, and the circumstances at the time of expressive act, etc., and the evaluation thereof should not be changed solely on the ground that the expressive materials were collected in the books or Internet sites
(see, e.g., Supreme Court Decisions 2007Do7257, Dec. 13, 2007; 2010Do1189, Jul. 23, 2010). Moreover, the crime under Article 7(5) of the National Security Act is a crime with the intention to produce, import, copy, transport, distribute, sell, or acquire documents, paintings, or other expressive materials for the purpose of committing an act of immigration as provided in Articles 1, 3, and 7(4).
The purpose in the objective crime is the excessive subjective illegal element for the establishment of crime, and it is separately required other than the intention, so even if the actor recognized the existence of the expressive materials and committed the act of paragraph 5, it shall be viewed as an act of immigration.