Defendant

Both parties

Constitution of Gangwon

Attorney Senior Gyeong-soo

Incheon District Court Decision 2008 Godan2799 Decided December 10, 2009

All appeals filed by prosecutors and defendants are dismissed.

1. Summary of grounds for appeal;

A. Public prosecutor (misunderstanding of facts on acquittal part, misunderstanding of legal principles, and unreasonable sentencing)

(i)misunderstanding of facts and misapprehension of legal principles

Of the facts charged in the instant case, regarding the violation of the National Security Act (praise, encouragement, etc.) due to each possession of pro-enemy materials in the Internet site, the following facts charged are as follows: according to the evidence submitted by the prosecutor, 13 articles related to the above facts charged are pro-enemy materials; the Defendant’s comments on the above facts; and the Defendant’s right to peruse and delete the above article as an operator of the Internet camera, which can be recognized as holding a factual control over the above article; and the Defendant started possession from the time of recognizing the fact that the above article was posted; and in light of all the above circumstances, the court below found the Defendant guilty of the facts charged on the grounds that it is difficult to find that the above evidence alone alone is difficult to recognize that the Defendant had perused the above article and continuously posted it with the intent to possess it, which affected the conclusion of the judgment by mistake of facts and misapprehension of legal principles.

【Unjustifiable sentencing

Considering the fact that this case is a matter of national security, the defendant's imprisonment (one year of imprisonment and two years of suspended execution) is too unfluent and unreasonable in view of the fact that there is no reflective color in the course of investigation and trial, and the risk of repeating a crime is agricultural.

B. Defendant (misunderstanding of facts about the part of the crime)

(1) Although North Korea is not an anti-government organization, the court below deemed North Korea as an anti-government organization and convicted the defendant. The court below erred by misapprehending the legal principles as to anti-government organization under Article 2 of the National Security Act and by violating the rules of evidence (the counsel asserts to the effect that North Korea is a "state," not an anti-government organization, and its normative power has been lost).

B. The contents of the documents, which were prepared, quoted, and posted directly on the following Doum and the NAver ("Sber Korea Defense Headquarters", and the documents, which were possessed by access to the computer home site, cannot be said to harm the nation's existence and security or free democratic basic order, and all of the contents cannot be said to harm the nation's existence and security or democratic basic order. Furthermore, even if the defendant operated the above Internet car page for research purpose, etc., the court below judged each of the above documents and documents as pro-enemy pro-enemy contents and sentenced the defendant guilty. Thus, the court below erred in the misapprehension of facts, violation of the rules of evidence, and incomplete deliberation, which affected the conclusion of the judgment (the defendant's use of these documents is also a expanded interpretation without the expression "non-known materials" under Article 7 (5) of the National Security Act).

Article 22(1) of the Criminal Procedure Act provides that the defendant shall be punished by double punishment in relation to the above article, since the defendant's operation of the defendant is not closed and no longer exists. Thus, the articles posted in the above Kape shall not be deemed to pose a threat to the existence and security of the country or democratic fundamental order.

2. Determination

A. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

The literal meaning of “holding” is a factual control over an object under the Criminal Act. It is reasonable to view that the scope of “holding” is limited to “goods” under the Criminal Act (Article 121), “the possession of opium, etc. (Article 205), or “the possession of detention warrant (Article 85),” “the holder (Article 106, 107, 108, 111, 1129, 133),” “the holder of a quasi-flagrant weapon or other things (Article 211),” and “the operator of an online portal that does not have any duty to delete or remove information from the Internet portal for reasons of access to or control of such information, such as the removal of such information from the Internet page or the removal of such information for reasons of access to or control of such information.” Therefore, it is reasonable to view that the same is limited to “illegal or physical control,” which is an object to be removed from the Internet portal’s work, and that it should not be recognized as the operator of an online camera or its storage of such information.

Ultimately, among the facts charged in the instant case, the part that the Defendant possessed 13 articles, a pro-enemy pro-enemy in the following Kaum, does not constitute a crime. Therefore, it is reasonable to conclude that the lower court acquitted each of the above facts charged, and the Prosecutor’s assertion is without merit.

B. Judgment on the defendant's assertion of mistake of facts

(1) As to North Korea's anti-government organization

On the other hand, the fact that North Korea joined the United Nations under the name of the Democratic People's Republic of Korea that it cannot be deemed that there was a state approval among the other members of the United Nations, as a matter of course, from the perspective of international politics and international law, that it cannot be deemed that there was a state approval among the other members of the United Nations, which are members of the United Nations, is a common position in international law (see, e.g., the existing South-North Korean agreements, the South-North Korean summits, the South-North Korean Joint Declaration, etc., which are currently underway, cannot be treated as an independent country under international law and domestic law, and the legal relationship between South and North Korea should be determined in accordance with the Constitution and laws of Korea, etc. (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008; Supreme Court Decision 2008Do9163, Jan. 30, 2009); and the defendant's assertion that North Korea is an independent country is without merit.

In addition, North Korea’s socialist Constitution and the Trackdong Code cannot be harmonized with the basic principles of our Constitution at the present point of time, and they are hostilely hostile. In view of the fact that North Korea’s final objective is to build a foundation of ideas and an anti-state society through this, and that for this purpose, the so-called South Korea’s policies to actively support the democratization of the society in South Korea and anti-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state-state

Furthermore, insofar as North Korea shows any apparent change that it is no longer a threat to our free democracy system, and accordingly the law is not maintained, the National Security Act, the purpose of which is to secure the security of the State and the lives and freedom of citizens, by regulating anti-state activities that may endanger the national security, cannot be deemed to violate the Constitution or to lose its normative power (see Supreme Court en banc Decision 201Da14488, May 1, 201, etc.).

As to the meaning of pro-enemy materials and the suitability of expressive materials related to the facts charged.

Documents, paintings, and other expressions, which are the objects of the crime under Article 7 (5) of the National Security Act, must be expressed specific and possible risks that may endanger the nation's existence and fundamental order (see, e.g., Supreme Court en banc Decision 90Do2033, Mar. 31, 1992; hereinafter referred to as "personal expressions"). The court below's assertion that the use of the above terms is an extension interpretation that is not permitted under the principle of no punishment without the law, since it is apparent that the court below used the term "personal expressions" in this meaning, it is not acceptable to the defendant's assertion that the above terms are an extension interpretation that is not permitted under the principle of no punishment without the law. Since the defendant's writing and other expressions, which are prepared or quoted in the following Gaum and Rabbbbbb, are the main contents of the documents that the defendant had been holding in the possession of North Korea's nuclear or private development activities in the Republic of Korea without the intention of the Republic of Korea, and that the defendant is aware of the idea and risks of culture.

ally, as to the dual purpose of the defendant

Article 7(1) of the National Security Act provides that a person who praises, solicits, promotes, or promotes any activity of an anti-government organization or its members or persons who have received such order, or propaganda or instigate any disturbance to the State, shall be punished by imprisonment for not more than seven years, even though he/she was aware that such act may endanger the existence and security of the State or democratic fundamental order. Paragraph (5) of the same Article provides that the person who produces, imports, copies, transports, transports, distributes, sells, or acquires documents, paintings, or other expressions for the purpose of performing the act (hereinafter referred to as “the purpose”) under paragraph (1) of the same Article shall be punished by the same punishment. Here, the term “purpose” does not require any active or conclusive awareness of the act, such as praise, rubber, etc., and if he/she knows that the contents of the expressive materials are objectively and do not contain such aptitude as to act in concert with the act of an anti-government organization, and furthermore, if he/she is aware that such act would be an act of an anti-government organization, the same as the content or content of such act.

In light of the motive and circumstance in which the defendant posts or possesses each of the above comments and documents, the contents of each of the above comments and documents, the age, academic background, career, etc. of the defendant, it is reasonable to deem that the defendant was aware, at least, that each of the comments and documents recorded in the facts constituting an offense in the judgment of the court below, are in harmony with the activities of North Korea, an anti-government organization, and thus, the defendant had a different purpose as prescribed in Article 7 (5) of the National Security Act at the time

On the other hand, although the defendant argued that he posted or possessed the above letters and documents for the purpose of academic research, etc., the defendant's intention is difficult to view that he was pure academic research, etc. in light of the fact that each letters and documents that the defendant posted or possessed by the defendant are ideologically biased and biased, and the defendant did not display or possess this letter from another point of view. Therefore, the defendant's argument is without merit.

m. Whether the representations in the closed car page are appropriate and double punishment

As seen earlier, the Defendant’s comments posted in the following Kaum can be deemed pro-enemy materials, and as long as the Defendant had a pro-enemy purpose at the time of posting the above Kaum, it cannot be deemed that the criminal punishment of the above Kaum has ceased to exist since they were closed. Furthermore, as long as the closure of Kaum is not criminal punishment, even if the Defendant is subject to criminal punishment due to the comments posted in the closed Kaum, this cannot be deemed as double punishment, and the Defendant’s assertion on this issue

(v) Accordingly, the court below's conviction of the above charged facts on the above premise is just and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts as alleged by the defendant in the judgment below.

C. Judgment on the Prosecutor’s assertion of unreasonable sentencing

In light of the fact that the Defendant did not reflect his mistake and thus, it cannot be said that there is no risk of repeating a crime, but the Defendant did not proceed to the specific action that may endanger the existence and safety of the Republic of Korea, the Defendant did not have any criminal record other than a fine, the scope of the freedom of thought and expression, which can be disseminated according to the democratization and maturity of our society, seems to have been widened, and the Defendant’s age, academic background, character and behavior, family environment, and family relationship, the Defendant’s punishment against the Defendant is too unreasonable.

3. Conclusion

Therefore, the appeal by the prosecutor and the defendant is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Jin Chang-soo (Presiding Judge)