[Defendant]
[Appellant] Prosecutor
[Defense Counsel] Attorney Seol Chang-il
[Judgment Below] Seoul Central District Court Judgment 2009No411, decided January 14, 2010
[Order]
All appeals are dismissed.
[Reasoning]
The grounds for appeal (including the supplementary brief on the grounds for appeal submitted after the expiration of the period for submitting the grounds for appeal, to the extent it supplements the grounds for appeal) are examined.
In order for an expressive material to be recognized as an "enemy-benefiting expressive material" under Article 7(5) of the National Security Act (국가보안법), the content of the expressive material must be positively and aggressively threatening to the survival and safety of the State and to the free democratic basic order, which are the legal interests protected by the National Security Act. Whether an expressive material has such enemy-benefiting character must be determined comprehensively, taking into account not only the overall content of the expressive material but also the motive for its creation, the manner of the expressive act itself, matters related to the outside world, the circumstances at the time of the expressive act, and other relevant circumstances.
Meanwhile, the offense under Article 7(5) of the National Security Act consists of producing, importing, reproducing, possessing, transporting, distributing, selling, or acquiring documents, drawings, or other expressive materials for the purpose of committing an enemy-benefiting act as prescribed in paragraphs (1), (3), and (4), and it is clear that this is what is called a purpose-crime (offense requiring a specific purpose). The "purpose" in a purpose-crime is a subjective element of illegality exceeding the elements of the offense, which is required separately from intent for the crime to be established. Therefore, even if the actor recognized the enemy-benefiting character of the expressive material and committed the acts prescribed in paragraph (5), the constituent elements of the offense are not satisfied unless the purpose of committing an enemy-benefiting act is recognized. Furthermore, since in criminal trials the burden of proving the facts constituting the elements of the prosecuted offense lies with the prosecutor, the prosecutor must prove that the actor had the purpose of committing an enemy-benefiting act, and it should not be presumed that the actor had the purpose of committing an enemy-benefiting act merely from the fact that the actor recognized the material as an enemy-benefiting expressive material and committed the acts prescribed in paragraph (5) of the same Article. In such cases, whether the actor had the purpose of committing an enemy-benefiting act should be determined by comprehensively considering the various circumstances indicative of the enemy-benefiting character of the expressive material as discussed above, as well as the actor's career and status, the circumstances under which the actor came to commit the acts prescribed in paragraph (5) of the same Article in relation to the enemy-benefiting expressive material, whether the actor joined an enemy-benefiting organization, and the connection between the enemy-benefiting expressive material and the substantive goals and activities of the enemy-benefiting organization to which the actor belongs, among other circumstances (see Supreme Court en banc Decision 2010Do1189, decided July 23, 2010, etc.).
The gist of the facts charged in this case is that the defendants, who are teachers belonging to the Unification Committee of the Seoul Branch of the Korean Teachers and Education Workers' Union (전국교직원노동조합), acquired, produced, distributed, or possessed each of the enemy-benefiting expressive materials at issue in this case for the purpose of praising, encouraging, propagandizing, or acting in sympathy with the activities of North Korea, an anti-State organization.
The court below, comprehensively considering the circumstances stated in its judgment, maintained the judgment of the first instance court, which had rendered a not-guilty verdict on all of the above charged facts on the grounds that the enemy-benefiting character could not be recognized for some of the expressive materials at issue in this case, and that, as to the remaining expressive materials, the purpose of committing an enemy-benefiting act as prescribed in Article 7(5) of the National Security Act could not be recognized on the part of the defendants.
Examining the reasoning of the judgment below in light of the legal principles discussed above and the record, the above determination by the court below is justifiable and may be upheld, and there is no illegality therein, such as misunderstanding the legal principles concerning the purpose of committing an enemy-benefiting act under Article 7(5) of the National Security Act, or exceeding the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, as argued in the grounds for appeal.
Therefore, all appeals are dismissed, and it is so ordered as stated in the Order, with the unanimous consent of the Justices involved.
Justice Ko Young-han (Presiding Justice), Yang Chang-su (Justice in charge), Park Byong-dae, Kim Chang-seok