Do 2016 Do 10089 Ga. Do 10089 Do 2010

【Rubber, etc.】

(b) Violence against foreign accidents;

(c) Interference with business;

(d) interference with the performance of official duties;

A

Defendant and Prosecutor

Attorney B

Seoul High Court Decision 2015-2662, 2016-934 (Joint Judgment) decided June 16, 2016

September 28, 2016

all appeals shall be dismissed.

The grounds of appeal are determined.

1. Judgment on the grounds of appeal by Defendant

A. Examining the reasoning of the original judgment and the reasoning of the first instance judgment maintained by the lower court, in light of the evidence duly admitted and examined by the first instance court, which maintained the reasoning of the lower judgment as to the assertion related to murder and attempted murder, the lower court maintained the first instance judgment that deemed that the Defendant had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had been

B. Regarding the assertion regarding interference with duties and interference with the execution of official duties, public officials of Seodaemun-gu who interfere with duties of bus drivers in the city among the facts charged in the instant case, and public officials of Seodaemun-gu.

Defendant’s assertion of the grounds of appeal as to the interference with the performance of official duties by each of the Seoul detention center’s medical officers and the Seoul detention center’s prison officers C is nothing more than the purport of misunderstanding the selection of evidence belonging to the exclusive jurisdiction of the lower court, which is a fact-finding court, and finding facts. Thus, the legitimate grounds of appeal cannot be the grounds of appeal.

C. According to the reasoning of the original judgment as to the assertion of mental and physical weakness, the court below rejected the defendant's assertion that he was in a state of mental and physical weakness at the time of committing each of the crimes of this case. Thus, the grounds for appeal that the court below erred by omitting judgment as to the assertion of mental and physical weakness cannot be accepted.

Furthermore, in light of the various circumstances revealed in the records, such as the background leading up to each of the crimes in this case, motive and method of the crime, and the defendant's behavior before and after the crime, the judgment of the court below rejecting the defendant's assertion that each of the crimes in this case was committed in the state of non-competence of the second instance judgment is legitimate.

D. As to the wrongful argument about sentencing

Examining the following circumstances: Defendant’s age, character and conduct, intelligence, and environment; relationship with victims; motive, means, and consequence of each of the instant crimes; and the circumstances after the commission of the crime, etc., the amount of punishment imposed by the lower court that sentenced Defendant for 12 years cannot be deemed to be extremely unfair.

E. The essence of the Defendant’s appeal regarding the assertion regarding the violation of the State Security Act (e.g., praisement, rubber, etc.) lies in claiming a judgment in favor of the Defendant by correcting the original judgment unfavorable to him/her, and thus, if the judgment does not disadvantage him/her, the Defendant’s appeal against the acquittal judgment, which is the most favorable judgment, is unlawful (see, e.g., Supreme Court Decision 2012Do1200, Dec. 27, 2012).

Defendant filed a final appeal against the violation of the State Security Act (e.g., praisement, rubber, etc.) and stated the grounds of final appeal. However, this part of the final appeal is determined as not guilty in the lower court’s reasoning. Therefore, Defendant’s appeal is unlawful as there is no benefit of appeal against Defendant.

2. Determination on the grounds of appeal by a prosecutor

Article 1(1) of the National Security Act provides that “The purpose of this Act is to ensure the safety of the State and the survival and freedom of citizens by regulating anti-state activities that may endanger the safety of the State.” Paragraph (2) of the same Article provides that “In applying this Act, it shall be limited to the minimum limit necessary to achieve the purpose of paragraph (1). It shall not be limited to the extension of interpretation or unfair restriction on fundamental human rights of the people guaranteed under the Constitution.” In addition, it shall be construed strictly in light of the basic spirit of the court of law that prohibits interpretation or expansion of interpretation (see Supreme Court Decision 97Do985 delivered on July 16, 1997, etc.).

The term "act of assistance" referred to in Article 7 (1) of the National Security Act refers to an act of responding to and taxing against the activities of an anti-state organization, etc. by asserting the same contents as the activities of a anti-state organization, etc. or engaging in any act consistent with such activities. Furthermore, the principle of interpretation that an act of assistance shall be applied only to the crimes of assistance such as anti-state organization, etc., which are prohibited by Article 7 (1) of the National Security Act shall also be applied only in cases where there is obvious danger that such act may pose substantial harm to the existence and security of the State or democratic basic order. Accordingly, 208 (see, e.g., Supreme Court Decision 90Do1088, Apr. 1, 2008).

Article 7(1) of the National Security Act provides that "any anti-state organization and its members or those who do so shall be punished." This refers to "any threat and violation of the independence of the Republic of Korea, the territory of the Republic of Korea, the destruction and math of the functions of the Constitution and laws, and the constitutional institutions, and the destruction and math of the 19th anniversary of the fact that it may endanger the existence and security of the State, or the free democratic basic order." 6th anniversary of the fact that it is 6th anniversary of the fact that it may endanger the existence and security of the State, 6th anniversary of the fact that it is 10th anniversary of the fact that it is 10th 7th Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hunth Hun one Hunth Hunth Hunth Hunth nine.

The court below held that ① Defendant D’s assertion of the crime of murder of this case, or the content of printed articles attempted to be distributed at the time of committing the crime of this case (hereinafter “Defendant’s assertion”) are identical only to North Korea’s propaganda, inciting, and activities, which are the anti-state organizations, and it cannot be seen as identical. ② There is room to view that the crime of this case’s attempted murder of this case is in line with North Korea’s propaganda, inciting, and activities, but it cannot be concluded that it is consistent with the foregoing. ③ In light of the motive for committing the crime of this case’s attempted murder of this case, Defendant’s thoughts and belief against North Korea, and history, etc., it is difficult to view that the crime of this case’s attempted murder of this case to the extent that it is difficult to prove that the crime of this case’s basic crime of this case’s crime of this case’s violation of the law, such as aiding and abetting North Korea’s activities, or that it is difficult to view that Defendant’s act of this case’s violation of the law or its fundamental reason.

Examining the legal principles as seen earlier and the evidence duly admitted and examined by the first instance court that maintained the judgment by the lower court, the said judgment by the lower court is justifiable, and there was no error of misapprehending the legal principles on the crime of operating the same group, such as anti-state organizations, against logical and empirical rules.

In addition, the argument that there was an error in the misapprehension of the legal principles in the sentencing of the lower court is ultimately an unfair argument for sentencing. However, even in the case where the Defendant was sentenced to death penalty, imprisonment with prison labor for life or for not less than ten years, or imprisonment without prison labor for a term of not less than ten years, the prosecutor’s interpretation of Article 383(4) of the Criminal Procedure Act cannot be asserted as the ground for appeal on the ground that the determination of the sentence of the lower court is somewhat unreasonable (see, e.g., Supreme Court Decision 2013Do14914, Feb. 13, 2014).

On the other hand, the prosecutor appealed against the entire judgment of the original court, but there is no statement in the petition of appeal or the reasoning of appeal as to the guilty portion.

3. Conclusion

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

Justices Kim Shin-chul

Justices Kim Yong-deok

Justices Kim So-young

Chief Justice Lee Ki-taik