[1] Whether the National Security Act is unconstitutional (negative)

[2] The concept of national secret and its judgment criteria under Article 4 (1) 2 (b) of the National Security Act

[3] The meaning of "Contact" under the National Security Act by means of communication, communication, or other means

[1] The principle of international peace and peaceful unification declared in Articles 4 and 5 of the Constitution 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, in the situation where it is evident that North Korea has not yet renounced the fundamental order of free democracy in our society with military power, and it is clear that it threatens our society's security by regulating anti-state activities that may endanger the national security, and thus, it cannot be deemed as a violation of the Constitution of the Republic of Korea with the aim of securing the security of the State and the survival and freedom of citizens. In light of the purpose of the Act, the concept of each element of crime under the National Security Act, which is reasonably interpreted in accordance with its law, cannot be deemed as a violation of the fundamental contents of the principle of no punishment without the law, since the concept of each element of crime under the National Security Act, which is reasonably interpreted in light of its legislative purpose, cannot be deemed as a violation of the fundamental rights guaranteed by the Constitution, but it does not infringe the fundamental rights of the Constitution.

[2] [Majority Opinion] Article 1(1) of the National Security Act provides that the purpose of this Act is to secure the national safety, survival, and freedom of citizens by regulating anti-state activities which may endanger the national security. In interpreting this Act, it shall be limited to the minimum necessary to achieve the purpose of paragraph (1) above. It shall not be extended or extended to the extent that the fundamental human rights of the people guaranteed by the Constitution are not unfairly restricted. It shall be strictly limited and interpreted in light of the basic spirit of the principle of no punishment without law prohibiting analogical interpretation or expanded interpretation. Thus, in interpreting secrets as provided in Article 4(1)2 Item (b) of the current National Security Act, it shall be construed that the secret constitutes all the facts, goods, or knowledge that constitutes a benefit of the Republic of Korea, and it shall not be verified or confirmed as confidential to anti-government organizations, and it shall be determined to the extent that it is not widely known to the general public through legitimate procedures of the Republic of Korea, and it shall be determined to the extent that it does not have any danger or risk to be disclosed to the general public.

[Separate Opinion] Unlike the case of divulgence of secrets to anti-government organizations for diplomatic purposes (Article 113 of the Criminal Act), the crime of disclosure of secrets to the Republic of Korea (Article 127 of the Criminal Act), and the crime of disclosure of secrets under the Military Secret Protection Act, the scope of national secrets under the National Security Act has been wide recognized. The Act was enacted to punish acts of detection, collection, and delivery of national secrets to secure our safety, survival, and freedom under the special circumstances of our country where the National Security Act is compared with the North Korean public policy organization without giving up the desire for the unification of the Republic of Korea. The meaning of the national secrets under the National Security Act is not widely known to the Republic of Korea by the Supreme Court for the sake of its purpose, and it can be interpreted that the public secrets are not disclosed or disclosed to the Republic of Korea through the systematic search of the whole potential of our country, or through the development of the world's public secrets strategy in South Korea. Thus, it is reasonable to interpret the concept of the national secrets as one of the most favorable criteria in view of the present situation and information collected.

[3] The crime of communications under Article 8 (1) of the National Security Act is an offense of communication with a member of an anti-government organization or a person who received an order from an anti-government organization, with the knowledge that it may endanger the existence and security of the State or democratic fundamental order, and if such communication is made by means of a meeting, communication, or other means, it refers to not only the case where the communication is made directly to a member of an anti-government organization or a person who received an order from an anti-government organization, but also through communications or other means by a third party

[1] Articles 12 and 37 (2) of the Constitution / [2] Article 4 (1) 2 of the National Security Act / [3] Article 8 (1) of the National Security Act

[1] [3] Supreme Court Decision 96Do2673 delivered on December 23, 1996 (Gong1997Sang, 583) / [1] Supreme Court Decision 93Do1730 delivered on September 28, 1993 (Gong1993Ha, 308), Supreme Court Decision 94Do930 delivered on May 24, 1994 (Gong1994Ha, 1871), Supreme Court Decision 96Do2696 delivered on May 16, 1997 (Gong1997Sang, 197Ha, 1802) / [2] Supreme Court Decision 93Do1951 delivered on October 8, 1993 (Gong193Ha, 3120, 1949Do19495 delivered on April 16, 195 (amended by Supreme Court Decision 97Do1965 delivered on May 16, 1994)

Defendant

Defendant

Attorney Kang Tae-tae

Seoul High Court Decision 96No2834 delivered on March 27, 1997

The part of the judgment of the court below regarding the crime No. 1 is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed.

The grounds of appeal by the defendant and his defense counsel are also examined.

1. As to whether the National Security Act is unconstitutional

The principle of international peace and peaceful unification declared in Articles 4 and 5 of the Constitution is premised on the premise that it does not harm the fundamental democratic order of the Republic of Korea. Thus, in the situation where it is obvious that North Korea has renounced the fundamental order of free democracy in our society with a strong military force, and it does not seem to be a threat to our democratic fundamental order, the National Security Act for the purpose of securing the safety, survival and freedom of the people by regulating anti-state activities that endanger the national security cannot be deemed to be a violation of the Constitution. The concept of each element of crime under the National Security Act, which is reasonably interpreted in light of the purpose of the Act, cannot be deemed to violate the fundamental contents of the principle of no punishment without the law, since the concept of each element of crime under the National Security Act, which is reasonably interpreted in light of the purpose of the Act, is ambiguous and broad (see Supreme Court Decision 96Do2673, Dec. 23, 196; the freedom of conscience guaranteed by the Constitution, the freedom of press, etc. guaranteed by the Constitution; but it does not infringe the fundamental freedom and rights within 37.

The court below's decision to the same purport is just, and there is no error of law as pointed out in the grounds of appeal.

2. As to the collection and delivery of national secrets (the first crime)

According to the reasoning of the judgment of the court below, the court below acknowledged that the non-indicted 1 (U.S. No. 1) entered North Korea on August 17, 1991 and carried out its purpose under the order of contact with the members of North Korea several times except for the non-indicted 2, who was aware of the situation of the South Korea's political situation, the activities of the U.S. 1 (U.S.) organization, the South Korean headquarters's personnel arrest and trial process, etc., and the defendant contacted with the members of the Republic of Korea on several occasions, and confirmed their contact with the non-indicted 1, and started contact with the purport that he would receive his family, but the non-indicted 1's request was known to the effect that the non-indicted 1's activities were not carried out within the country's political situation, the activities of the U.S. 1 (U. 1) organization, the South Korean headquarters's activities, and the fact that the defendant did not receive any information or information within the Republic of Korea's country's country's political situation, and public interest.

However, 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 which may endanger the national security, and the interpretation of this Act under Article 1(2) of the same Act shall be limited to the minimum necessary to achieve the purpose of paragraph (1), and it shall not be limited to the extension of interpretation or unfairly restricting the fundamental human rights of the people guaranteed by the Constitution. In addition, the strict interpretation of the elements of this Act shall be limited in light of the basic spirit of the principle of no punishment without law prohibiting the expansion of interpretation or interpretation.

Therefore, in interpreting the confidentiality stipulated in Article 4 (1) 2 (b) of the current National Security Act, it shall be all facts, goods, or knowledge that the confidentiality of each aspect of politics, economy, society, culture, etc. is not confidential or confirmed to anti-government organizations, and it shall not belong to the facts, goods, or knowledge widely known to the general public through legitimate procedures in Korea, etc., and if disclosed, it shall have the substantial value of protecting the confidentiality as it is likely to cause danger to the national security.

However, Article 4 (Performance of Purpose) of the National Security Act provides for punishing a member of an anti-government organization or a person who received an order from an anti-government organization for the performance of its purpose. Whether it is publicly announced should be determined in accordance with sound common sense and social norms, considering various circumstances such as the degree of development of mass media or means of communication such as newspapers, broadcasting, etc., the scope of readers and listening, and the subject of publication, etc., if it is judged that there is no need to detect, collect, confirm, and verify any further. Whether there is a substantial danger in divulgence, shall be determined in accordance with the sound common sense and social norms, which takes into account the situation of confrontation between the Republic of Korea and North Korea, North Korea, or other anti-government organization at the time of collecting the secret, and even if the secret is insignificant, if it is evident that the secret will benefit the anti-government organization and would be detrimental to the Republic of Korea

Therefore, the Supreme Court Decisions 93Do1951 delivered on October 8, 1993, 94Do930 delivered on May 24, 1994, 95Do121 delivered on July 28, 1995, 95Do1624 delivered on September 26, 1995, and the previous precedents purporting the same purport are to be amended.

As to this point, there is a separate opinion by Justice Song-sung, Justice Jeong-ho, and Justice Lee Jae-soo (see Paragraph (8)).

According to the records, the summary of the facts charged regarding the detection, collection, and delivery of the State secrets of this case against the defendant is as follows: (a) the defendant passed through a magazine, such as the Do newsletter and the Do newsletter, or a monthly newspaper, or through a newspaper, a monthly newspaper, etc., or access to a sports organization's office, and (b) the data obtained were collected after compiling and collecting the records, and then integratedly, it constitutes the activities of the sports organization in Korea and re-grown, the arrest and trial process of the personnel of the South Korean headquarters or recorded tapes, and delivered them to the non-indicted 1, by arranging the contents of the contents of the facts charged as above, and thus, the court below should have determined that the defendant should have been subject to examination or information of the public media, such as newspapers, broadcasting, etc., and the extent to which the defendant should have received such information, and thus, it is more likely that the defendant should have received such information, in light of the fact that the defendant should have received such information from the North Korean headquarters and its actual contents.

Nevertheless, the judgment of the court below which did not take such measures is erroneous in the misunderstanding of legal principles as to "national secrecy" under Article 4 (1) 2 (b) of the National Security Act, and it is clear that this affected the judgment. The grounds for appeal pointing this out are acceptable.

3. As to the point of the composition of a foreign organization (the third crime at the time of sale)

According to the reasoning of the judgment below, the court below decided that the South-North Korean unification headquarters was established on August 1, 198 by taking account of the fact that the South-North Korean unification headquarters and the North Korean unification headquarters were established with a view to promoting the unification of the Korean Peninsula, and that the South-North Korean unification headquarters was established with a view to promoting the unification of the Korean Peninsula, and that the South-North Korean unification headquarters was established with a view to promoting the unification of the Republic of Korea, and that the North Korean unification headquarters was established with a view to promoting the unification of the Republic of Korea, and that the North Korean unification headquarters was established with a view to promoting the unification of the South-North Korean unification, and that the North Korean unification headquarters was established with a view to promoting the unification of the South-North Korean unification, and that the North Korean unification headquarters was established with a view to promoting the unification of the South-North Korean unification of the Republic of Korea, and that the North Korean unification headquarters was established with a view to forming the North Korean unification headquarters and the North Korean unification of the North Korean unification of the Republic of Korea.

In light of the records, the fact-finding and judgment of the court below are deemed to be justifiable, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to Article 7 (3) of the National Security Act, as pointed out in the grounds of appeal.

4. As to the point of communication (the crime of No. 2, 4, and 5 at the market)

According to the judgment of the court below and the reasoning of the court of first instance as cited by the court below, the crime of communications under Article 8 (1) of the National Security Act is established when, with the knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order, the communication is established through meetings with members of anti-government organizations or those who received their order, communications or other methods. The term "convenation" means not only the case in which members of anti-government organizations or those who received their order are directly parties, but also the case in which communications or other means are made by using a third party, and the defendant was sufficiently informed of the fact that the above act of communication and communication with the non-indicted 1, who received the order of North Korea 6 times from December 26, 1994 to July 23, 195, the court below acknowledged that the above act of communication and communication with the non-indicted 1, who was under the command of the Republic of Korea from March 27, 1995 to May 9, 1996.

In light of the records, the above measures of the court below are just, and there are no errors in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to Article 8 (1) of the National Security Act, as pointed out in the grounds of appeal.

5. As to the North Korea's activities (the 6-A) of the said Article

In light of the records, at around 18:15 on August 12, 1995, the court below was just in the first instance court, which maintained the first instance court, which had maintained the fact that the defendant committed the activities of North Korea, an anti-government organization, as a violation of Article 7 (1) of the National Security Act, with 100 members and civic students, such as the unification of federal systems, the National Security Act, the abolition of peace agreements, the conclusion of peace agreements, the formation of the U.S. armed forces and the unification cable to realize them, and the unification strike, and the fact that he participated in the activities of North Korea, which was an anti-government organization, as well as the fact that the defendant committed the activities of North Korea, as a violation of Article 7 (1) of the National Security Act, and there is no violation of the rules of evidence or misunderstanding of legal principles as to Article 7 (1) of the National Security Act.

6. As to the production and distribution of pro-enemy materials (the crime No. 6-B)

According to the reasoning of the judgment below, the court below determined that the defendant's various representations in the judgment of the court of first instance, which the defendant produced and distributed as a citizen's activity, were the answer to the unification route according to the North Korean strategy of the South South South Korea, which is an anti-government organization, and that the defendant, considering the knowledge and knowledge of the defendant, was aware that the above act may endanger the safety, existence or democratic fundamental order of the Republic of Korea, and that if he produced and distributed the expressions containing the contents of aptitude, such as acting in concert with the activities of anti-government organization, it is presumed that the defendant was aware that he would be able to act in concert with the activities of North Korea at least, and otherwise, unless other materials exist that the defendant did not intend to act in concert with the above activities of North Korea.

In light of the records, the above measures of the court below are just, and there are no errors in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to Article 7 (5) of the National Security Act, as pointed out in the grounds of appeal.

7. Conclusion

Therefore, the part concerning the crime No. 1 of the judgment of the court below (this part is before the first criminal facts in the judgment of the court of first instance and the concurrent crimes under the latter part of Article 37 of the Criminal Act) is not reversed because it is erroneous in the misapprehension of legal principles as to the state secrets under Article 4 (1) 2 (b) of the National Security Act. Thus, this part of the judgment is reversed and remanded to the court below, and the appeal as to the crime No. 2 through 6 of the remaining judgment of the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Cho Jong-sung, Justice Jeong-ho, and Justice Lee Jae-ho as to the meaning of state secrets.

8. Concurring Opinion

Concurring Opinion by Justice Song-Gyeong, Justice Jeong-ho, and Justice Lee Lee Jae-soo is as follows.

I agree with the majority opinion that the part of the judgment of the court below regarding the crime No. 1 should be reversed. However, I do not agree with the reasoning thereof and the fact that the previous Supreme Court precedents concerning confidential information as provided by Article 4 (1) 2 (b) of the National Security Act should be modified. The reasons are as follows.

First, the Supreme Court has consistently held that "any information and data necessary for the benefit of the Republic of Korea that is not confidential or verifiable to anti-government organizations, including all matters of the nation's secret relating to politics, economy, society, culture, etc., and even if such information and data are widely known through legitimate procedures in the Republic of Korea, it is advantageous to North Korea which is an anti-government organization, and if it may cause any disadvantage to the Republic of Korea, it shall be classified as national secret." (See Supreme Court Decisions 95Do1624 delivered on September 26, 1995, 95Do121 delivered on July 28, 1995, 95Do126 delivered on July 15, 194, 194, 200Do137, etc., which is recognized as public secrets under the National Security Act, and thus, it is reasonable that our country's country's country's public secrets and public secrets were not disclosed to secure the public secrets under the National Security Act.

If the concept of national secrets is interpreted narrowly as the majority opinion, it would result in the failure to punish the crime, even though there is a need to punish it as a crime such as detection, collection, and delivery of national secrets, which would cause danger to the safety of the Republic of Korea. Moreover, as such, it is recognized that the special situation in which us is faced continues without any change in the present situation, it would not be deemed that the previous Supreme Court’s opinion is not yet changed.

Second, the majority opinion states that in order to be recognized as confidential, there should be a real value to be protected as confidential. This is because there is no particular difference between "to be favorable data to North Korea, which is an anti-government organization, which is the standard of judgment of the previous Supreme Court precedents, and to cause disadvantages to the Republic of Korea" and "to cause disadvantages to the Republic of Korea." The concept of state secrets itself is not absolute, but relative, and can be evaluated differently depending on the time, location and situation. Therefore, the judgment criteria for the scope of state secrets should be flexibly interpreted depending on whether to change the situation such as the situation of inter-Korean substitution, etc., and newspapers and magazines published in Korea due to the development of electronic media are distributed to countries in the world and can obtain information through the Internet, etc., it is judged that this does not constitute "the materials that are favorable to North Korea, which are subject to detection, collection and transmission, etc., and that it may cause disadvantages to the Republic of Korea," and therefore, it is not necessary to change the opinion of the previous precedents.

Therefore, in the case of this case, among the contents of the facts charged that the defendant discovered, collected, or transmitted, it is deemed that it cannot be viewed as a state secret even if according to the criteria of the previous Supreme Court precedents. Thus, the court below should have deliberated more on this point, and should have examined whether it constitutes a "state secret" as provided by Article 4 (1) 2 (b) of the National Security Act. Ultimately, the part of the crime of Article 1 of the judgment of the court below as to the detection, collection, and delivery of a state secret should be reversed on the ground that there was an error of law by misunderstanding the legal principles on "state secret" as provided by Article 4 (1) 2 (b) of the National Security Act.

Chief Justice Park Jong-man (Presiding Justice) and Justice Park Jong-ho, Justice Park Jong-ho, Justice Park Jong-ho, Justice Park Jong-ho, and Justice Lee Jin-hee, Justice Kim Jong-hee, Justice Lee Jong-hee, Justice Lee Jong-hee, Justice Lee Jong-hee, Justice Lee Jong