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(영문) 대법원 1992. 7. 14. 선고 91도41 판결
[국가보안법위반][공1992.9.1(927),2461]
Main Issues

A. Whether the purpose of establishing a crime of violation of Article 7(5) of the National Security Act is whether the purpose of establishing a crime of violation is sufficiently satisfied with dolusence (affirmative)

B. Whether the above “A” is presumed to have dolusence as to the purpose of the above “A” in a case where a pro-enemy organization, or an anti-government organization, or a pro-enemy organization, whose content includes a pro-enemy organization, or a content that may benefit therefrom, acquired, possessed, produced, or distributed it (affirmative)

C. Whether Article 7(1) and (5) of the National Security Act are unconstitutional

Summary of Judgment

A. The crime of violation of Article 7 (5) of the National Security Act is an act of acquiring, possessing, producing, distributing, etc. documents and other pro-enemy contents for the purpose of committing an act under paragraphs (1) through (4) of the same Article. The purpose of the crime is to commit a pro-enemy act. However, since the act is not required until the active desire or conclusive awareness of the act is not sufficient, and it is sufficiently satisfied with the dolusence of the act, the actor is aware that the act is objectively deemed the contents of the expressive materials of North Korea, which is an anti-government organization, and furthermore, if there is a dolusence that the act may be a pro-enemy act, the elements of the above Article are satisfied.

B. In a case where an anti-government organization objectively cooperates with activities such as propaganda and inciting North Korea, which are anti-government organizations, and thereby acquires, possess, manufacture, or distribute pro-enemy contents containing contents that may benefit to anti-government organizations or their activities, the act is presumed to have dolusent awareness that the act would have become a pro-enemy act such as the contents of the expressive materials, and therefore, the act satisfies the requirement of excessive subjective illegal element, unless there are materials showing that there was no objective such as academic research or the pursuit of profit or the first instance of defense.

C. Article 7(1) and (5) of the National Security Act applies to cases where each of the prescribed acts may endanger the existence and security of the State or endanger the liberal democratic basic order. Thus, this interpretation does not violate the Constitution.

[Reference Provisions]

(a)Article 7(5) and (c) of the National Security Act;

Reference Cases

A.B. Supreme Court Decision 90Do2033 Decided March 31, 1992 (Gong1992, 1466). Supreme Court Decision 86Do403 Decided June 24, 1986 (Gong1986, 966) 91Do3279 Decided March 31, 1992 (Gong192, 1482). Supreme Court Decision 90Do1812 Decided October 12, 1990 (Gong190, 2343) 89Hun-Ga113 Decided April 2, 1990 (No. 11514No. 214)

Escopics

A and one other

upper and high-ranking persons

Defendants

Defense Counsel

Attorney B

Judgment of the lower court

Seoul Criminal Court Decision 89No7250 delivered on December 5, 1990

Text

All appeals are dismissed.

Reasons

The Defendants and the defense counsel’s grounds of appeal are also examined.

The crime of violation of Article 7 (5) of the National Security Act is an act of acquiring, possessing, producing, distributing, etc. documents or other pro-enemy contents for the purpose of committing an act under paragraphs (1) through (4) of the same Article. The purpose of the crime is to commit a crime. However, since the contents of the expressive materials are not necessary to make positive desire or conclusive awareness of such an act, it can be met with dolusent perception, it is recognized that the contents of the expressive materials are objectively viewed that they contain such aptitude as acting in concert with North Korea's activities, such as propaganda, inciting North Korea, which is an anti-government organization. Furthermore, the above elements of the association are satisfied if there is a dolusent perception that such an act would be an anti-government organization or an anti-government organization, and if the expressive materials were acquired, possessed, produced, distributed, or distributed, it is assumed that they would be an anti-government organization or an anti-government organization, which is an anti-government organization, and that they would not be able to take advantage of the contents of the expressive materials.

In addition, Article 7 (1) and (5) of the National Security Act applies to cases where each of the prescribed acts may endanger the existence and security of the State or endanger the liberal democratic basic order. Thus, such interpretation does not violate the Constitution (see Constitutional Court Order 89Hun-Ga113, Apr. 2, 1990).

Therefore, the court below's application of Article 7 (5) 1 of the National Security Act to the defendants' act on the premise that "Marisan" in the judgment that recognized and decided the criminal facts of this case against the defendants based on its evidence constitutes pro-enemy materials is just and there is no violation of the law of the Constitution, misunderstanding of legal principles, or violation of the rules of evidence as pointed out. All of the arguments are without merit.

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

Justices Kim Yong-sung (Presiding Justice)

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심급 사건
-서울형사지방법원 1990.12.5.선고 89노7250