2017 Inventory 21 Violation of the National Security Act, violation of anti-public law, espionage

Network A

Defendant B’s spouse

Yellow Jinho (prosecution), maximum case (public trial)

C. Law Firm

Attorney D

Seoul Criminal Court Decision 75 Gohap995 delivered on April 30, 1976

January 26, 2018

The accused shall notify publicly the summary of the judgment of innocence.

1. Facts charged;

It is as shown in the attached Form.

2. Progress of the case;

According to the records, the following progress is revealed with respect to this case.

(a) Illegal detention of the accused;

1) Around October 1975, the Defendant was residing in the lower accommodation located in Busan East-gu, Busan, as a economy and student of the E University. However, on the 20th day of the same month, the Defendant was led to the Central Information Department located in Seoul without a warrant.

2) The Defendant prepared twice a written statement from October 27, 1975 to October 31 of the same month, which was before the issuance and enforcement of detention warrant, at the investigation group of the fifth bureau of the Central Information Department, as described in paragraph (3) below. The suspect interrogation protocol was prepared twice on the 31st of the same month.

3) On November 1, 1975, a warrant of detention was issued against the defendant, and the warrant was executed by the fifth Investigation Division of the Central Information Department on the 3th day of the same month.

B. Determination of the judgment subject to review

On April 30, 1976, the defendant was prosecuted as a charge of violating the National Security Act, such as the attached list (hereinafter referred to as the "fact of prosecution"), and the Seoul Criminal District Court found the defendant guilty of all the charges, and sentenced the defendant to five years of imprisonment and suspension of qualification (75Gohap95). The defendant and the prosecutor appealed against this, but the Seoul High Court dismissed all the appeals on August 31, 1976 (761182) and the Supreme Court dismissed the defendant's appeal on December 14, 1976 (76Do3111), and the judgment of the first instance court (hereinafter referred to as the "the judgment of review") became final and conclusive.

C. Progress of the retrial procedure

On November 10, 1999, the Defendant died. On April 19, 2017, the spouse B filed a petition with this court for a retrial on the judgment subject to a retrial. On October 27, 2017, this court rendered a decision to commence a retrial on the ground that there was a ground for retrial under Article 420 subparag. 7 and Article 422 of the Criminal Procedure Act. The prosecutor did not file a complaint against the said decision to commence a retrial and the said decision to commence a retrial became final and conclusive on November 3, 201 of the same year.

3. Determination

A. Summary of the claimant's assertion

1) The Defendant, such as meetings with members of anti-government organizations, communications liaison, receipt of money and valuables, and locked under the Order of the Republic of Korea, has been studying in the Republic of Korea from the young people, ships, etc. belonging to the Federation of G, H, and I, and has not received any money and valuables from the members of anti-government organizations. However, the Defendant was studying in the Republic of Korea to study in the Republic of Korea.

2) Relation to anti-government organizations, rubber, and assistance

There is no fact that the defendant listens to the reputation of North Korea by radio, or sing in North Korea.

3) Regarding performance espionage for military purposes

Although the Defendant, along with other foreign students, conducted a demonstration with the central intelligence department office building and the military unit near 38 lines, there are few instances in which the E University students conducted a demonstration, the Defendant did not grasp the location of the central information department building and the armed riot of the former military unit, or did not collect the situation of the E University students’ demonstration, and the facts charged do not constitute “a secret” with the information collected by the Defendant.

4) The defendant's statements, etc. at the investigative agency and court

The statement made before the judicial police officer of the defendant was made by the adviser who was conducted in the state of illegal confinement, and the prosecutor also made a statement because the above state of voluntariness continued, all of the above statements are inadmissible. The defendant, without the appropriate legal assistance of counsel, stated in the case subject to a judgment without the legal assistance of counsel, and the remaining evidence is not directly related to the facts charged of this case.

B. Determination on the evidence submitted by the prosecutor

1) Summary of evidence

The evidence presented by the prosecutor to prove the facts charged in the instant case is as follows: ① each written statement of the accused and each protocol of examination of the police and prosecution against the accused; ② J, K, L, M, N, and0 each protocol of statement of the police officer against the accused; ③ written opinion, recognition report, each investigation report, accompanying report, investigation results report; ① the seizure protocol and seizure list; the notice of detention warrant to the accused; the notice of extension of detention period; the decision of delivery of detention period; the delivery of explanatory documents; the investigation results; the statement of fingerprint inquiry; the suspect environment investigation (main and residence); (5) new trial records; the first to nine trial records; the examination records of P; the appellate court’s first to third trial records; and the trial records of the final appeal.

2) Determination on admissibility of evidence

A) The purport of denying the admissibility of evidence without the admissibility of evidence (1) of each police interrogation protocol against the defendant and each written statement is to prevent the defendant from being exposed to the substantive truth and from being exposed to unreasonable pressure that infringes on the fundamental human rights of the statement by leaving the authenticity of the statement. When there is a dispute over the voluntariness of the statement, reasonable and detailed facts should not be proven, but the prosecutor must prove eliminating the question of voluntartariness. If the prosecutor fails to prove the removal of the question of voluntartariness, the admissibility of evidence is denied (see, e.g., Supreme Court Decision 2004Do7900, Nov. 23, 2006). The record of this case reveals that the defendant was detained in the Central Information Book for about 15 days without leaving the military court and received an investigation into the National Information Book for 10 days, and there is no evidence that the defendant had been forced to make a confession during the examination and enforcement of the warrant, and there is no reason to suspect the admissibility of evidence after being issued.

(2) Each prosecutor's protocol of interrogation of the defendant

In a case where the Defendant made a confession without any voluntariness at an investigative agency prior to the prosecutor’s investigation agency due to harsh acts, such as adviser, etc., and thereafter made a confession of the same contents even at the prosecutor’s investigation stage, even if there was no coercion of confession such as adviser, etc. at the prosecutor’s investigation stage, the confession prior to the prosecutor’s investigation stage is also deemed to be a confession without any voluntariness (see, e.g., Supreme Court Decision 92Do2409, Nov.

The defendant made a false confession due to the long-term illegal confinement conducted by the investigator of the Central Information Department prior to transfer to the prosecution. After the issuance and execution of a detention warrant, there is a reason to suspect that the situation of hearing without decentralization continues in the prosecution investigation stage after the issuance and execution of the detention warrant, and there is no reason to suspect that the defendant led to the confession of the facts charged of this case, and there is no other proof by the prosecutor to resolve the doubts about the decentralization

(3) Other evidence presented by the defense counsel, recognition report, each investigation report, accompanying report, and investigation result report are not admitted as evidence by the defense counsel, and they are not proven to be genuine by the testimony of the maker. Thus, all evidence are inadmissible.

B) The admissibility of evidence and expert witness evidence evidence evidence evidence statement, the seizure record and seizure list, the warrant notice of detention against the accused, the notice of extension of detention period, the investigation result, the investigation result, the fingerprint inquiry notice, the suspect environment investigation document (main and residence), the first to 9 trial records in the judgment for retrial, the first to 1 trial records in the appellate court, the first to 3 trial records in the appellate court, the protocol of final appeal, the protocol of trial in the appellate court, and the protocol of examination of P as to the examination of witness, and the admissibility of evidence is admitted as evidence on the grounds that there are no circumstances to deny the admissibility of evidence. (The police's statement about 00 is recognized as admissibility in accordance with Article 314 of the Criminal Procedure

C. Determination of facts charged

1) The crime under Article 5(1) of the former anti-public law (repealed by Article 2 of the Addenda to the National Security Act, Act No. 3318, Dec. 31, 1980; hereinafter the same shall apply), such as meeting with members of anti-government organizations, communication liaison, receipt of money and valuables, requires that the defendant has an awareness of the crime. The recognition of a person who was subject to North's order requires not only to be known as a pro-North Korea-friendly person, but also to be known as a person who was engaged in an activity under North Korea's order. It is difficult to conclude that the purpose of the crime was recognized as a person who was engaged in an activity under North Korea's order at the time of entry into the Republic of Korea (see, e.g., Supreme Court Decision 200Do28168, Sept. 25, 190; 200Do828, Sept. 26, 2016).

According to the records of this case, each police statement, etc. of the above witnesses (B-B-2) evidence of this case is insufficient to acknowledge that the defendant committed each crime, such as detecting, etc., meeting with them or receiving money and valuables, and locked into Korea upon receiving orders from them, and there is no other evidence to acknowledge it. Rather, the defendant stated that he did not detect military secrets or report it to the Central Committee of the Joseon Labor Party on the fifth trial date of the case subject to a judgment subject to a retrial (151 pages of the trial record of this case). The defendant stated that he did not report it to G even on the second trial date of the appellate trial (348 pages of the trial record of this case).

2) Relation to anti-government organizations, rubber, and assistance

In applying Article 4 of the former Anti-Corruption Act, the content of the act must be objectively beneficial to anti-government organizations, and subjectively, it requires awareness that it is harmful to anti-government organizations (see, e.g., Supreme Court Decision 82Do2658, Feb. 22, 1983). In addition, since the above provision is unconstitutional due to the diversity of the legal text and the brutinity of the scope of application, criminal punishment may be expanded due to the widening of the scope of application, it shall be limited to cases where there is specific and obvious danger that may actually harm the existence and security of the State or democratic fundamental order. If it is difficult to readily conclude such danger, it shall be subject to punishment (see, e.g., Supreme Court Decision 96Do2158, Nov. 12, 196). The mere fact of hearing North Korea’s broadcasting itself cannot be seen as an act of actively expressing an intention to respond to the act of anti-government organizations, etc., such as an anti-government organization.

As indicated in the facts charged in the instant case, just because the Defendant purchased the radio and listened to the broadcasts of North Korea, or took place in the presence of other people, etc., it cannot be deemed that there was an awareness that the Defendant would benefit an anti-government organization or that the Defendant would be in favor of anti-government organization, and it is difficult to deem that there is a specific and obvious danger that may have a substantial harm to the national existence and security or democratic fundamental order. Rather, the Defendant, together with the Defendant, stated to the effect that L and E and N and K, who are not the universities, did not know of the fact that the Defendant was in a serious high tension, and did not know the ideology or composition of the Defendant in light of the attitude of ordinary lawsuit, and stated to the effect that there was no other evidence that the Defendant did not hear the broadcasts of North Korea or sing in North Korea. As such, each of the above witness’s protocol [2-B] against the above witness’s witness, etc., and there is no clear evidence to acknowledge it differently.

3) The following facts revealed in the records of the instant case and arguments related to the military performance counter-espionage, namely, ① even if the Defendant’s legal statement in the case subject to a judgment, testimony of a witness P, etc., the Defendant merely visited Korea and went abroad several times, and visited the National Security Department and the military unit near the 38th line, together with the students from S through 50 students affiliated with the Seoul National University, and found the fact that there was a witness in the demonstration of the students of the E University. ② The Defendant did not appear to have a way to verify the actual training condition of the former military unit or soldier; ③ even if the Defendant collected the location of the Central Information Department in Korea, rural and urban living conditions, or the situation of demonstration for the liberalization of the students of the E University, it is difficult to view that there was a concern for the general public to harm the safety of the Republic of Korea in the event of widely known facts or knowledge or leakage of its contents, there is no evidence to acknowledge the evidence of each of the above witnesses’ evidence for a counter-espionage.

D. Sub-committee

As above, the evidence submitted by the prosecutor is insufficient to use it as evidence due to its lack of admissibility, or to recognize facts constituting the elements of each crime. Furthermore, even if all evidence are collected, it cannot be deemed that the facts charged are proven to the extent that there is no reasonable doubt.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment shall be announced in accordance with the main sentence of Article 440

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

A person shall be appointed.

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A person shall be appointed.