Political Act and requirements for acceptance of resistance rights

In order for a certain act to be deemed a legitimate act to be permissible in light of the ideology of the entire order of the state law, it must be limited to the motive of the act, legitimacy of the purpose, reasonableness of the means or method of the act, legal interests protected by law and legal interests protected by law, formation of right of infringement, urgency, and there is no other means or method except that of the act. The assertion of justification of the act in violation of the current positive law by disregarding the constitutional order that actually exists and by disregarding the concept of the right of resistance, it cannot be accepted only by itself.

Article 20 of the Criminal Act

Supreme Court Decision 86Do1764 delivered on October 28, 1986 (Gong790No3159) 86Do1809 delivered on January 20, 1987 (No. 351 type59)

Defendant 1 and four others

Defendants

Busan District Court (87Gohap28)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for three years and suspension of qualifications for three years, by imprisonment for two years and suspension of qualifications for two years, by imprisonment for three years, by imprisonment for three years, by imprisonment for four years, by imprisonment for four years and by imprisonment for four and five years, respectively.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 155 days each included in the sentence above.

However, the execution of each of the above imprisonment for 4 years against Defendant 1, and 3, and for Defendant 2, 4, and 5 for 3 years from the date of the final judgment of this case shall be suspended.

Articles seized in the attached list shall be confiscated from the Defendants.

The gist of the grounds of appeal Nos. 1, 2, 3, and 4 of the Defendants’ attorney-at-law is that: (a) there was no fact that Defendants 1, 2, 3, and 4 possessed or distributed printed matter to the anti-government organization, such as the items listed in subparagraphs 1 through 4, and any demonstration likely to cause considerable social anxiety; and (b) each summary of the grounds of appeal Nos. 2 and 1, and 4 (the grounds of appeal No. 2) are enacted and amended by an unauthorized institution under the National Security Act or the Assembly and Demonstration Act; and (c) the contents of the Act are invalid as it infringes on the essential contents of fundamental rights under the Constitution; and (d) the three grounds of appeal and the summary of the grounds of appeal by the Defendants (hereinafter the grounds of appeal No. 3) are unconstitutional as it violates the fundamental contents of fundamental rights under the Constitution; and (e) the Defendants did not constitute an unlawful act as part of a strike to distort the military shock power and to realize national unification.

(1) Regarding the first ground for appeal, considering the evidence duly adopted by the court below after comparing the above first ground for appeal, it can be sufficiently recognized that the defendants' each crime of this case is established in the court below's fact-finding process, and there is no reason to discuss the above appeal. (2) As to the second ground for appeal, the National Security Act and the Assembly and Demonstration Act are all resolved in the National Assembly and promulgated by the Government (National Security Act No. 3318, Dec. 31, 1980; the completely amended Assembly and Demonstration Act is partially amended as Act No. 3278, Dec. 18, 190; and all rights and freedom of citizens can be restricted only when it is necessary for national security, maintenance of order or public welfare; and there is no reason to believe that the above act constitutes a violation of the law's basic principles or principles of law's law's establishment and order. Fifth, it cannot be viewed that the above act constitutes a violation of the law's basic principles or principles of law's establishment and order.

However, in consideration of the following circumstances: (a) the Defendants still have a firm judgment on society and without human life, and led to the instant crime under the false awareness education of school ship owners; and (b) the Defendant appears to have tried to produce exhibition effects rather than to achieve the purpose of occupation; and (c) other circumstances such as the character, conduct, environment, criminal record, etc. of the Defendants as indicated in the instant records are considered to be unreasonable since the amount of the sentence imposed by the lower court against the Defendants is too unreasonable, and therefore, the Defendants’ defense counsel’s appeal is reasonable in this respect.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the party members are again decided as follows after pleading.

The criminal facts of the Defendants recognized as a party member and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

Since the defendants 1 and 2's acquisition, possession, and distribution of documents in violation of the National Security Act are as follows: Article 7 (5) and (1) of the National Security Act; Articles 14 (1), 3 (1) 4 of the Assembly and Demonstration Act; Articles 144 (2), 14 (1), and 136 (1) of the Criminal Act are as follows; Articles 3 (1) and 36 (1) of the same Act are as follows; Articles 3 (1) and 2 (1) of the Punishment of Violence, etc. Act; Articles 319 (1) of the Criminal Act are as follows; Articles 5 and 31 of the same Act are as follows; Articles 7 (1) and 5 of the same Act are to be included in the list of the above crimes; Articles 5 and 319 (1) of the same Act are to be included in the sentence of imprisonment for a limited term of imprisonment; Articles 37 (1) and 5 of the same Act are to be included in the list of crimes committed against the defendants.

It is so decided as per Disposition for the above reasons.

Judges Cho Hong-won (Presiding Judge)