2015No2837 A. Violation of the Act on the Control of Narcotics, etc. (fence)

(b) Violation of the National Security Act;

(c) Violation of the National Security Act (self-help assistance and acceptance of money and valuables);

라. 국가보안빕위반(특수잠입 · 탈출)

(e) Violation of the National Security Act (association, communication, etc.);

(f) Violation of the National Security Act (Offer of convenience);

1.(a)(c)(d)(f) A;

2.(a) B

3.(d) C

Defendants, Prosecutor (Defendant A, and C)

Kim Wil (prosecution, public trial), Lee Jae-il (public trial)

Attorney LI (Korean War for Defendant A)

Law Firm E (Defendant B)

[Defendant-Appellee]

Law Firm G (Defendant C)

Attorney Lee In-bok

Seoul Central District Court Decision 2015Gohap392 Decided September 25, 2015

2016,2.3

All appeals filed by the prosecutor against Defendant A and C and appeals filed by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of legal principles or mistake of facts

1) Grounds for appeal against Defendant A by the Prosecutor

The court below found Defendant A not guilty on this part due to the misapprehension of the legal principles on "the crime of offering conveniences" and "the actual danger" under the National Security Act, even though Defendant A provided North Korean public writers L with physical local measuring devices and air injectings, etc. and in the process there is a clear risk that the act of receiving money and valuables may actually harm the existence and security of the State or democratic fundamental order.

2) Grounds for appeal against the prosecutor’s defendant C

The court below erred by misapprehending the legal principles on "the crime of special diving or escape" or by misapprehending the purpose of consultation with Defendant C on the execution of an order or the performance of purpose, thereby acquitted Defendant C of this part.

3) The reason for the appeal by Defendant B is not only the case where it is impossible to confiscate due to a cause not attributable to the Defendant, but also the case where the Defendant did not obtain any profit due to the relevant crime. However, the lower court did not err by misapprehending the legal principles on the confiscation and the collection, i.e., where 25 km, which are determined as the object of the collection at the lower court, could not be confiscated due to a cause not attributable to the Defendant, i.e., the consumption, concealment, damage, loss, etc. of the Defendant, nor did the Defendant have obtained any profit in relation to 25 km, nor did it decide on the reason that the Defendant could not confiscate 25 km, even though he did not have obtained any profit in relation to 25 km, and imposed the penalty surcharge of KRW 4.175 million on the Defendant in relation to the manufacture of Handphone.

B. Unreasonable sentencing (defendants)

The sentencing of the court below (the sentencing of the defendant A: 9 years of imprisonment; 7 years of imprisonment; 6 years of imprisonment; and 4.175 million won of additional imposition) is too unreasonable.

2. Determination

A. Judgment on the Prosecutor’s assertion of misapprehension of the legal principles as to Defendant A

1) Summary of this part of the facts charged

On November 201, 201, the Defendant: (a) purchased two local measuring instruments and air injecting the body and bring about to the North Korean border in China, from L to a high-level part of the party by telephone; and (b) received instructions from L, and (c) transferred KRW 249,000 to the bank account in his/her name on November 25, 201.

On December 2, 2011, the Defendant purchased approximately KRW 1,100,00 in total the body local measuring devices and two injecting-type air, and entered the Republic of Korea with USD 1,000 for aviation fees from L on December 5, 201, and entered the Republic of Korea after receiving USD 1,000 for aviation fees. Accordingly, the Defendant met with an anti-government organization upon knowing that it may endanger the existence and security of the Republic of Korea or democratic fundamental order, and received money and valuables from the said organization, and offered money and valuables to the members of an anti-government organization.

2) The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the lower court determined that it is difficult to view that the evidence alone, which was presented by the prosecutor, was proven to the extent that there is no reasonable doubt that each act of the Defendant, as stated in this part of the facts charged, is an act to be punished under the National Security Act because it is obviously dangerous to the existence and security

① In light of the general purpose of use, usage, etc., any material that is difficult to recognize an anti-state activity of anti-state organization. 2: [ even if the above material was presented to the headquarters under the command of the headquarters in North Korea, it cannot be readily concluded that such L’s act constitutes an anti-state activity that may cause substantial harm to the existence and security of the Republic of Korea or democratic fundamental order, such as activities as a member of anti-state activity that is regulated by the National Security Act.

③ The facts charged are merely that the Defendant offered convenience to the above acts, and received money and valuables on the pretext of the expenses, etc., and there is no evidence to prove that each act was committed by the Defendant as stated in the facts charged in a series of processes in consultation with L and other anti-state activities.

3) Determination of the immediate deliberation

A) The crime of accepting money and valuables under Article 5(2), the crime of meeting and communications, etc. under Article 8(1), and the crime of offering convenience under Article 9(2) of the National Security Act, etc. are established when an act prescribed by each of the relevant provisions is highly dangerous to the existence and security of the State or democratic fundamental order (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008; Supreme Court Decision 2010Do6310, Oct. 25, 2012; Supreme Court Decision 2010Do3810, Jun. 28, 2013).

B) In light of the above legal principles, the circumstances revealed by the court below are as follows. As alleged in the grounds of appeal by the prosecutor, the defendant's purchasing and offering physical local measuring devices and air injecting the air according to the order of the North Korean official only can be seen as the purchase of gift articles to be offered to W and LJ by the senior officer at least included in the scope of indirect and incidental duties of the North Korean official agent at least, and the defendant's meeting with 1 branch of the North Korean official clerk at the time of the crime in this case and taking full account of the following: (i) the purchase of articles for gift to be offered to W and LJ according to the order of the senior officer; and (ii) the provision of various conveniences or military benefits before and after the crime in this case is conducted during the process of providing and performing activities for the purpose of offering military benefits; and (iii) it is difficult to recognize any objective relationship with anti-state activities of anti-state organizations as gift articles according to its branch office.

C) The above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to "the crime of offering conveniences" and "actual danger" under the National Security Act, as pointed out by the prosecutor, which affected the conclusion of the judgment. Therefore, the prosecutor's allegation in this part is without merit.

B. Judgment on the misapprehension of legal principles or erroneous determination of facts as to Defendant C by the prosecutor

1) Summary of this part of the facts charged

Around April 2004, the Defendant, along with B, had agreed on L and Handphones transaction at AE hotel around North China, which was set up in AE hotel in the middle of China. From L to L, “AP is a foreigner engaging in anti-North activities.” AP’s food movement is a foreigner engaging in anti-North activities. Inter-Korean relations and inter-Korean relations are aggravated, and there is only conflict. It was proposed to the effect that “I would be possible to take AP cancer.” The Defendant responded to the purport that “I would know how I would find out”, and entered the Republic of Korea on April 10, 2004.

around June 2004 to July 2004, the Defendant, along with B, went to China and came to stay at AE hotel and dealt with L in the form of a traffic accident by using ‘Organizational violence vehicle' in relation to L during the stay at AE hotel in North Korean border. Many surveillance cameras select a place where there is no camera in advance. The final place will be selected by understanding the schedule. The period of the execution is 15-20 days for drinking alcohol. The execution period is 15-20 days for drinking alcohol. The amount is 30,00 U.S. dollars is required. And from L, the Defendant respondeded to the purport that the Defendant would inform of whether it was carried out after being marked with L.

Accordingly, the defendant, after receiving an order from a member of anti-government organization or consulting an accomplishment of purpose, escaped to the Republic of Korea to receive an order or to consult an accomplishment of purpose.

2) The judgment of the court below

The lower court determined that: (a) there was no circumstance that the Defendant was either prepared or aggressive in connection with the AP cancer after entering the Republic of Korea; (b) there was specific expression of the cost and execution period of the AP's dwellings, winter lines, and the degree of security service for calculating the amount in nature; (c) there was two times the Defendant proposed the business in which he was actually able to pay money to L; (d) there was a strong appearance as to the character of the Defendant; (e) there was a lack of credibility and securityness; and (f) the Defendant was either not guilty of the facts charged for the purpose or for the Defendant’s preparation of the BP's entry into the Republic of Korea on the ground that it was difficult to prove that there was a lack of reasonable content or for the Defendant's attempt to assist the BP's narcotic transactions.

3) Determination of the immediate deliberation

A) In order to establish a crime of diving under Article 6(2) of the National Security Act, the intent and purpose of practicing the order must be recognized. In order to establish the crime of escape under the same Article, the intent and purpose of consultation should be recognized (see, e.g., Supreme Court Decision 84Do2323, Jan. 22, 1985).

B) On April 4, 2004, the court below, based on these legal principles, revealed the following facts and records, I L was talking about AP cancer preparation to the defendant on or around April 4, 2004, but the conversation seems to have reached an abstract level to the extent that the defendant would know one time, and it seems that the defendant did not have planned or prepared any specific plan or preparation concerning AP cancer preparation after the defendant's entry into the Republic of Korea. ② The defendant and B left the Republic of China on June 18, 2004, and around April 18, 2004, the defendant and B were aimed at receiving 1kgg from L for 10,000 U.S. dollars paid in advance to L, and it appears that the defendant did not have any specific contact between the defendant and L at the time, and it appears that there was no specific contact between the defendant and the defendant from April 4, 2004 to 208.

The judgment of the court below is just that it is difficult to view that there was an intention to arrest L's order or to consult with the intent to carry out the purpose with L at the time of departure from the country, and it is difficult to view that there was an error of misunderstanding the legal principles as pointed out by the prosecutor, or of misunderstanding the fact.

This part of the prosecutor's assertion is without merit.

C. Judgment on Defendant B’s assertion of misapprehension of the legal principles

1) Confiscation or collection under Article 67 of the Act on the Control of Narcotics, Etc. is not for the purpose of stuffing gains from a criminal act, but for a punitive disposition. Thus, even if no gains have been acquired from such criminal act, the court shall order the collection of the equivalent value. If there are several persons committing the crime with respect to the scope of the equivalent value, the court shall order the respective persons to collect the equivalent value within the scope they handled (see, e.g., Supreme Court Decision 2010Do7251, Aug. 26, 2010). In addition, in the collection as a punitive disposition, where it is impossible to confiscate due to a de facto or legal disorder, the equivalent value may be collected if it is impossible to confiscate due to a reason attributable to the defendant, and further, it does not require that the confiscation be impossible.

2) In light of the above legal principles, even if the 25 km, which was judged as the object of collection at the court below as alleged by the defendant, did not constitute a case where the defendant could not confiscate due to the reason attributable to the defendant, and even if the defendant did not have acquired any profit in relation to 25 km, the court below is just in applying the proviso of Article 67 of the Narcotics Control Act to impose an additional charge of KRW 4.175 million on the above 25 km, and there is no error in the misapprehension of legal principles as to the confiscation and additional collection as pointed out by the defendant. Accordingly, the defendant B's above assertion is without merit.

D. Determination on the Defendants’ assertion of unreasonable sentencing

○ The lower court’s determination of sentence against the Defendants is as follows.

【Causes for Sentencing Regarding the Crime of Manufacturing Handphones】

The Defendants manufactured a total of 60 km in cooperation with the North Korean official writers. From around 1997 to May 200, the Defendants prepared a number of stages from the 1997 to the Republic of Korea, China, and North Korea. Using their own knowledge and skills, the Defendants were produced after being equipped with the manufacture equipment of phiphones. The amount of 25 km out of the manufactured phiphonephones exceeds the North Korean side. As such, the Defendants were committed in a systematic and professional manner by sharing their roles. The 60 km from the produced phiphones are very enormous quantity that can be administered. The risk and illegality of the phiphones are very serious. The crime of manufacturing phiphones for profit-making purposes is very heavy in itself, because the Defendants were able to continuously commit an illegal act of causing drug addiction to those who consume on the part of the manufactured phiphones, and the Defendants were able to receive drug addiction, and thus, have been able to pursue a considerable amount of financial profit in the case of drug abuse.

However, there are circumstances to be favorable consideration. Handphones that the Defendants received were seized in the Chinese airspace and did not actually distributed to the morals confiscated. There is no evidence to acknowledge that the Defendants introduced and distributed them into the Republic of Korea. There is no economic benefit that the Defendants actually acquired through this crime. The Defendants have no choice but to continue to commit the crime since they were detained in North Korea after they confirmed that there was no cropid damage in North Korea. The Defendants did not have any such aspect as to whether they continued to commit the crime since they were detained in North Korea. This crime was committed 15 years prior to the confession and cooperation with the investigation by the Defendants.

【Grounds for Sentencing】

1) Defendant A

The Defendant actively participated in the whole process of the crime of manufacturing philophones. B is not responsible for the following.

Furthermore, according to the North Korean Ordinance, the Defendant collected detailed information about major anti-North activities, such as their residence, activity status, etc. in order to kill 0 and P cancer, and sought a person who will perform cancer. In order to report and consult on the progress situation with the North Korean colon, the Defendant entered China several times in the course of a series of process, entered China, purchased guidance books, and provided a pair of policies in accordance with the order, and received a large amount of money out of the activity funds. In accordance with the Ordinance of the North Korean colon’s colon’s colon’s colon’s colon’s colon’s colon’s colon’s colon’s colon’s colon’s consular activities.

The Defendant provided military benefits by investigating and providing information related to a heat co-generation, and issuing an open string of weapons systems of the Republic of Korea. As such, the Defendant is assessed to have participated in anti-state activities conducted by North Korea in order to threaten the security of the Republic of Korea and democratic fundamental order. The Defendant was also a crime of a nature that can sufficiently recognize such fact. Specific and significant risks have occurred. The illegality and social criticism is very large.

However, the Defendant seems to have been able to lead an economically difficult life from the date of the commission of the instant crime. It is difficult to completely dismiss the Defendant’s appeal that the Defendant received the proposal for each of the crimes in the judgment due to the most responsible responsibility. He planned the crime by forming a personal trust relationship, taking into account the economic and social environment, character, etc. of the Defendant, and used it in bad faith. In this regard, the motive and circumstances of the Defendant’s crime may be considered favorable to the Defendant. The Defendant recognized and reflected in the public law investigation by deceiving the commission of the crime in violation of the National Security Act. The Defendant has led to the confession of the crime in violation of the National Security Act, and cooperateed in the investigation by the public law. The family members want to take the initiative.

2) Defendant B

The Defendant led the Defendant to commit the instant crime of manufacture of philophones. The Defendant was required to participate in the instant crime, and was in charge of the preparation and actual production process for the manufacture of philophones, and was in charge of important decision-making. The Defendants are the most responsible among the Defendants. Even after that, the Defendants arranged transactions of purchase of philophones on the part of North Korea several occasions, and led to each meeting of the holding. Other acts related to the manufacture and brokerage of philophones continuously committed the instant crime even though they were punished for narcotics crimes, their character and conduct also take into account the circumstances unfavorable to the Defendant.

However, there are circumstances to be more favorable consideration. The substantial harm and injury of each meeting in the holding is that phiphones transaction is beneficial to anti-government organizations, but the transaction did not actually result in sexual intercourse. It is assessed that there was no realistic risk to national security or free democratic fundamental order. The Defendant acknowledges and reflects the mistake. The Defendant is aged, and is not very good for health. Family members want to take the action.

3) Defendant C. The Defendant also participated in the whole process of committing the crime of manufacturing philophones in the judgment, by purchasing facilities necessary for manufacturing philophones in Korea and sending them to China. It cannot be deemed that the Defendant merely participated in the process of committing the crime of manufacturing philophones. There was a number of criminal records, such as being sentenced to suspended sentence due to fraud

However, around 194, the Defendant accepted B’s proposal that a family member may pay money in a situation in which his economic difficulty is faced with, and thus, led to the commission of the crime, taking into account the motive and circumstances leading up to the commission of the crime. The erroneous recognition of facts and reflects, and the fact that the family members want to leave the ship should also be considered under favorable circumstances. Furthermore, the equity should be taken into account when the judgment is rendered simultaneously with the crime of violation of the Act on Special Cases Concerning the Handling of Traffic Accidents in the first Head of the Crime

0 The lower court’s sentencing, comprehensively taking into account the conditions of the sentencing prescribed in Article 51 of the Criminal Act, was conducted in the lower limit of the recommended sentencing guidelines set by the Supreme Court’s Sentencing Committee for Defendant A, and in the case of Defendant B, within the lower limit of the recommended sentencing guidelines set forth in the same sentencing guidelines. The lower court’s determination on the sentencing of the lower court is justifiable and reasonable within the scope of the reasonable sentencing discretion.

- There is no change in special circumstances to assess differently the conditions of sentencing in the original trial until the trial at the trial at the trial at the trial at the court. In addition to all all the factors of sentencing as shown in the arguments at the present case, such as the Defendants’ age, character and conduct, environment, family relationship, motive for committing the crime and circumstances after the crime, the lower court’s sentencing appears to be reasonable and it does not seem too heavy as the Defendants’ assertion. This Defendants’ assertion on the inducement

3. Conclusion

Since the Prosecutor’s appeal against Defendant A and C and the Defendants’ appeal are without merit, they are all dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, senior judge

Judges Kim Gung-sung

Judges Kim Gung-sik

1) As to Defendant C’s crime, the crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents for which judgment becomes final and conclusive and the latter concurrent crime

Since the sentencing criteria set by the Supreme Court Sentencing Committee are not applicable.