2014Do13672 Violation of the National Security Act (Provision of Convenience)

A person shall be appointed.

Prosecutor

Chuncheon District Court Decision 2013No786 Decided October 1, 2014

June 24, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 1(1) of the National Security Act provides that "the purpose of this Act is to secure the security of the State and the freedom of citizens by regulating anti-state activities that may endanger the national security." Paragraph (2) of the same Article provides that "the interpretation and application of this Act shall be limited to the minimum necessary to achieve the purpose prescribed in Paragraph (1). It shall not be limited to the extension or interpretation of this Act or to unreasonably restrict the fundamental human rights of the people guaranteed by the Constitution." In addition, it shall be interpreted strictly in light of the basic spirit of the principle of no punishment without law prohibiting analogical interpretation or expanded interpretation (see Supreme Court en banc Decision 97Do985, Jul. 16, 1997, etc.).

Article 6 (1) of the National Security Act provides that "a person who has escaped from, or escaped from, an area under the control of an anti-government organization with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order" shall be punished. The term "contincing the existence and security of the State" refers to threatening or infringed upon the independence of the Republic of Korea, invasion upon the territory, destruction or macing the functions of the Constitution and laws, and the constitutional body, and destruction or macilizing the external hostileism, etc., and "contincing the fundamental order of free democracy" refers to all violent control and arbitrary control, i.e., e., the self-government and arbitrary control of the people, and making it difficult to maintain the rule of law based on the basic principles of freedom and equality, and specifically, it refers to the respect for fundamental human rights, separation of powers, multiple political parties system, election system, private property and market economy, and destruction of the internal system of Korea including independent economic order and judicial power, etc., 90.2.

2. In full view of the circumstances as indicated in its reasoning, the lower court determined that all of the lock-in and escape acts and, in particular, North Korea’s smuggling to North Korea does not constitute a crime of lock-in and escape under the National Security Act, and only an act having a clear risk of harming the existence and security of the State or democratic fundamental order constitutes a crime of lock-in and escape under the National Security Act.

Furthermore, the court below found that the co-defendant A of the court below was aware of such circumstances that he left North Korea and received money under the name of his relative who wishes to escape from North Korea by pushing ahead of it to Ha, Gyeongwon-gun, Gyeongwon-do. The defendant provided convenience such as funds and efforts to recover the remains of his own her own son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's Gyeong-do, and attempted to resolve his economic problem with Gap's own son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the elements of the crime of diving and escape under the National Security Act.

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

Justices Jo Hee-de

Note Justice Lee Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok