[Defendant] A
[Appellant] Defendant
[Defense Counsel] Attorney B and 4 others
[Judgment Below] Seoul Criminal District Court Decision 89No6547 delivered on February 1, 1990
[Order]
The judgment below is reversed and the case is remanded to the Seoul Criminal District Court Panel Division.
[Reasoning]
1. As to Ground of Appeal No. 1
Article 6, Paragraph 1 of the Addenda to the former Constitution (구 헌법), promulgated on October 27, 1980, provided that the National Legislative Council for National Security (국가보위입법회의) shall exercise the authority of the National Assembly from the date of enforcement of the former Constitution until the day before the date of the first convening of the National Assembly under the former Constitution, and thus there existed a constitutional basis granting legislative power to the National Legislative Council for National Security. Meanwhile, Article 5 of the Addenda to the current Constitution (현행 헌법), which amended the former Constitution and was promulgated on October 29, 1987 and took effect on February 25, 1988, provides that laws in effect at the time the current Constitution takes effect shall continue to have effect unless they violate the current Constitution, thereby recognizing so-called "continuing effect" of prior statutes. The purport of this provision is that, among prior statutes, those deemed to have been abolished or to have lost effect because they cannot be reconciled with the current Constitution shall lose their effect pursuant to this provision, but otherwise they are presumed to have continuing effect; furthermore, whether a statute is unconstitutional must be determined by whether its substantive content violates the provisions of the current Constitution. Therefore, even if Article 7, Paragraphs 1 and 5, and Article 8, Paragraphs 1 and 3 of the National Security Act (국가보안법) were provisions added when the National Security Act was amended and promulgated by the National Legislative Council for National Security on December 31, 1980, this fact alone does not render the above provisions unconstitutional, and the above provisions are valid statutes that do not violate the current Constitution (see this Court's Decision 91Do2419 delivered on December 24, 1991, etc.). Therefore, this ground of appeal is without merit.
2. As to Ground of Appeal No. 2
Article 7, Paragraph 1 of the Act on Registration, etc. of Periodicals (정기간행물의등록등에관한법률), insofar as it is interpreted to require that the facilities prescribed in Item 9 of the same paragraph, referring to Article 6, Paragraph 3, Items 1 and 2, must be owned by the person concerned, is unconstitutional. However, according to the evidence set forth by the court below, the Defendant published the "Jeonminryeon Newspaper" (전민련 신문) at issue in this case without even filing a registration application with the Ministry of Culture and Information. Therefore, the court below's application of Article 22, Item 3 and Article 7, Paragraph 1 of the Act on Registration, etc. of Periodicals to this fact was ultimately correct, and thus this ground of appeal is also without merit.
3. As to Ground of Appeal No. 3
As to the charge against the Defendant for violation of the Assembly and Demonstration Act (집회및시위에관한법률), the prosecution was initially instituted on the charge that the Defendant hosted an outdoor assembly likely to cause significant social unrest without reporting it, in violation of Article 14, Paragraph 1, Article 3, Paragraph 1, Item 4, and Article 4, Paragraph 1 of the former Assembly and Demonstration Act (Act No. 3278 of December 18, 1980). At the court of first instance, while maintaining the fact that an outdoor assembly was held without a report (although the wording was changed to "without submitting a report for an outdoor assembly" in accordance with the amended Act), the prosecution withdrew only the portion alleging that the assembly was "likely to cause significant social unrest," and the indictment was amended to charge a violation of Article 19, Paragraph 2 and Article 6, Paragraph 1 of the amended Assembly and Demonstration Act (Act No. 4095 of March 9, 1989). The facts charged before and after the amendment do not differ in that the Defendant hosted an outdoor assembly without reporting it; the amendment merely withdrew the portion alleging that the assembly was likely to cause significant social unrest. Therefore, there is identity between the facts charged before and after the amendment.
Accordingly, the court below's determination that there was no illegality in the first instance court's permission of the above amendment to the indictment was correct, and the argument that the facts charged before the amendment focused on the nature of the assembly while the facts charged after the amendment focused on the point that the assembly was hosted without a report, such that the nature of the offenses differ and there is no identity of the facts charged, cannot be accepted.
4. As to Ground of Appeal No. 4
The phrase "knowing that it would benefit an anti-state organization" as provided in Article 8 of the National Security Act means that the content of the act could objectively benefit an anti-state organization, and it is sufficient if a person of reasonable common sense recognizes, or has at least a dolus eventualis-level recognition, that the act would benefit the anti-state organization; it is not required that the actor have a purposeful intent to benefit the anti-state organization (see this Court's Decisions 90Do1451 delivered on September 25, 1990 and 83Do185 delivered on March 22, 1983, etc.).
Having comprehensively considered the evidence set forth, the court below found the following facts: that the North Korean communist group is an anti-state organization whose fundamental goal is communization of the entire Korean peninsula through unification, and which, based on so-called people's democratic revolution theory and united front tactics, ignores the Republic of Korea government's proposals for inter-governmental talks and instead negotiates only with social organizations while excluding the Korean government authorities, thereby seeking to divide national opinion and disturb internal order within the Republic of Korea to achieve the goal of communization; that the Defendant had participated in activities such as forming a promotion committee for the Pan-National Rally, proposing the holding of said rally, and issuing open replies for preliminary contacts, targeting the so-called "Committee for the Peaceful Reunification of the Fatherland" (조국평화통일위원회, abbreviated as "Jopyeongtong"), an affiliated organization of the North Korean Workers' Party composed of high-ranking party and government officials; that upon the formation of the National Alliance for Democracy and Reunification of Korea (전국민족민주운동연합, abbreviated as "Jeonminryeon") on January 21, 1989, the Defendant became its C (Chairperson); that Jeonminryeon had, as its organizational structure, an executive board representing the organization externally and presiding over various meetings, a standing executive committee (상임집행위원회, abbreviated as "Sangjipwi") that carried out all of the organization's projects, and four standing special committees including the Fatherland Reunification Committee (조국통일위원회, abbreviated as "Jotongwi") for promoting the Pan-National Rally, etc.; that the Defendant, as C of Jeonminryeon, presided over various meetings such as the Sangjipwi and directed or ratified the direction of Jeonminryeon's activities by receiving reports on the activities of its subordinate organizations; that the Pan-National Rally as found by the first instance court was also mainly handled and promoted in practice by the Jotongwi under Jeonminryeon, and the Defendant conspired in and participated in this in the manner described above; that meanwhile, even though Jeonminryeon was requested on several occasions by government authorities, individually or through commentary, statements, etc., to halt the promotion of the Pan-National Rally, it continued to push forward with it, holding several press conferences as found by the court below, making various proposals to the so-called "Jopyeongtong," announcing a list of representatives for preliminary meetings, and responding to replies from the North Korean side (which were mainly delivered through letters sent via the Red Cross or announcements on North Korean Central Broadcasting) by way of return replies, thereby attempting, through the method of media coverage via press outlets, to communicate with and meet members of the North Korean communist group, though this attempt failed to materialize. Based on these findings, the court below determined that, in light of these facts, the Defendant, being a person of relatively high intellectual standing, recognized that the Pan-National Rally as promoted in the above manner could be exploited by the North Korean communist group as a means of dividing national opinion and disturbing internal order, or as part of its united front tactics for communization, and thus recognized that it would benefit the anti-state organization. This determination by the court below accords with the legal principles set forth above and is correct, and there is no error of misapprehension of legal principles as argued.
The argument contends that the purpose of promoting the Pan-National Rally was to discuss matters such as the liberalization of inter-Korean civilian exchange, and that this was merely a civilian-level effort toward unification aimed at hastening the peaceful reunification of the fatherland, not intended to benefit either North or South Korea; that since such efforts or acts would become the benefit of the entire national community, they might, as a consequence, also benefit North Korea as part of that national community, but this differs from the "benefit" referred to in the provision concerning "knowing that it would benefit an anti-state organization"; and that, since our proposals or assertions in inter-Korean relations are in fact frequently exploited by North Korea as part of its communization strategy, even if such efforts and acts might in part be exploited by North Korea's communization strategy, this alone cannot support a finding that the Defendant knew it would benefit an anti-state organization. However, even if the intent of the Pan-National Rally was to benefit the national community, if North Korea could in reality use it as a means of disturbing internal order within the Republic of Korea, this naturally falls within the "benefit to an anti-state organization" prescribed by the National Security Act; and even though North Korea frequently exploits our proposals or assertions for its communization strategy, recognition that such exploitation is possible does not present any obstacle to a finding that the Defendant knew it would benefit an anti-state organization. These arguments are all without merit.
5. As to Ground of Appeal No. 5
The "communication" or "contact" prescribed in Article 8 of the National Security Act does not distinguish between whether it was conducted secretly or openly and officially. Therefore, the argument that, because in this case the Defendant conducted communication and contact openly and officially using domestic newspapers, broadcasting, and other media, this does not fall under the "communication" or "contact" referred to in the above provision—which the argument claims requires only secret communication and contact as a requirement—is merely an idiosyncratic view and cannot be accepted.
6. As to Ground of Appeal No. 6
If the Defendant, as C of Jeonminryeon, acted together with the persons found by the first instance court to promote the above Pan-National Rally, this constitutes a case in which multiple persons formed a joint intent and carried out a crime, and even if there was no division of the acts of execution, the Defendant cannot escape liability as a principal offender. Therefore, the judgment below, which maintained the first instance judgment convicting the Defendant as a co-principal by conspiracy, is not in error as regards misapprehension of legal principles concerning co-principals by conspiracy, as argued. This ground of appeal is also without merit.
7. As to Ground of Appeal No. 7
Even if, as the Defendant argues, the leaflet at issue in this case was prepared with the aim of true democratic development of South Korea, resolution of heightening military tension and confrontation on the Korean peninsula, establishment of a structure of peace, and rejection of foreign powers, being faithful to the national cause of self-determination, democracy, and reunification, and intended to benefit the national community as a whole, its content—asserting that our people have, since the division, been subjected to the interference of American neo-colonialism and the harsh oppression of military dictatorial regimes, that the military dictatorial regime, monopoly conglomerates, and foreign powers such as the United States and Japan desire to entrench the division of the Korean peninsula, and that therefore we must struggle for the prompt withdrawal of U.S. forces stationed in Korea, the removal of nuclear weapons, the abolition of Team Spirit exercises, and the promotion of the Pan-National Rally—substantially coincides with the propaganda maneuvers by which the North Korean communist group, as part of its propaganda activities for communization of the South, falsely propagates that our political, economic, and social system is a colony or comprador system of American imperialism or a dependent relationship of domination, while continuously conducting anti-American activities. If so, the adoption of the content of such a leaflet at the founding assembly constitutes an act of endorsing the assertions of an anti-state organization, and since such content could objectively benefit North Korea, if the Defendant caused the content of the above leaflet to be adopted while recognizing this identity of content, this cannot but constitute benefiting an anti-state organization. The judgment below to this effect is correct, and this ground of appeal is without merit.
8. As to Ground of Appeal No. 8
On March 1, 1989, the Defendant delivered relief funds of 200,000 won through a Jeonminryeon official to the site of the Hyundai Heavy Industries labor dispute, where workers who had come up from Ulsan were staging a sit-in; several hours later, the Defendant personally visited the site together with Jeonminryeon officials and delivered an inflammatory speech encouraging struggle to the union members, saying, "Your struggle is lonely, but it has the support of the entire populace, and I have no doubt that your demands will be achieved. The future is yours. Please continue your struggle with confidence," and "Will D, who is over 70, take his money to the grave?" and, as a result, the atmosphere of the sit-in was heightened. If so, no matter that the visit and speech were made with the intent of comforting and consoling the union members, in light of the circumstances and manner in which the speech came to be made, its content, and the results following the speech, this constitutes incitement and instigation as prescribed under the Trade Union and Labor Relations Adjustment Act (노동쟁의조정법). The court below's determination to the same effect that this constituted incitement and instigation is justified, and there is no error of misapprehension of legal principles as pointed out in the argument. This ground of appeal is also without merit.
9. As to Ground of Appeal No. 9
A. A labor dispute act (쟁의행위) prescribed in Article 3 of the Trade Union and Labor Relations Adjustment Act refers to an act performed by a party to a labor relationship for the purpose of achieving its demands, and here, "demands" means the demands between the parties to a labor relationship concerning working conditions such as wages, working hours, welfare, dismissal, and other treatment as prescribed in Article 2 of the same Act. Therefore, a labor dispute act that does not have as its main purpose the maintenance or improvement of such working conditions does not fall within the scope of labor dispute acts regulated by the Trade Union and Labor Relations Adjustment Act (see this Court's Decision 90Do2852 delivered on January 29, 1991).
B. According to the evidence set forth by the first instance court and cited by the court below, the "Rally of Workers to Repel Public Authority for Hyundai Heavy Industries" (현대중공업 공권력 격퇴를 위한 노동자 출정식) held on April 1, 1989 in the vacant lot in front of Mansudae Apartments in Ulsan was held jointly by the workers together with the Ulsan Missionary Practice Council, the Council for the Practice of Reinstatement of Dismissed Hyundai Workers, the Ulsan University Student Council, and others, with the main purpose of protesting the government's intervention using public authority. This intervention had ended the illegal strike that Hyundai Heavy Industries workers had continued for a long period from December 23, 1988 to March 30, 1989 on the pretext of improving working conditions, and in the course of this intervention, tear gas had been fired even into residential areas of workers, such as Mansudae Apartments, causing hardship even to the elderly and infants from the tear gas. It can be seen that this assembly was attended not only by union members of Hyundai Heavy Industries and Hyundai Group affiliate companies, but also by their families and some citizens and students, and that the overall atmosphere was dominated by protest against the excessive use of public authority on the previous day.
Given these facts, in light of the circumstances, nature, purpose, and course of the above assembly, it is difficult to view it as an improvement of working conditions or as an extension of a labor dispute act for such purpose, and therefore it cannot be deemed a labor dispute act as prescribed by the Trade Union and Labor Relations Adjustment Act. Nevertheless, the court below regarded the above rally as a labor dispute act and maintained the first instance judgment, which found that the Defendant, by delivering a speech there, had instigated and incited the parties concerned with respect to a labor dispute act. Therefore, the judgment below is erroneous in that it misapprehended the legal principles concerning labor dispute acts, thereby affecting the judgment, and this ground of appeal criticizing this point has merit.
10. Accordingly, the portion of the judgment below finding the Defendant guilty of violating the Trade Union and Labor Relations Adjustment Act with respect to the incident of April 1, 1989 should be reversed. However, since the court below imposed a single sentence on the ground that this offense and the remaining offenses found guilty were in a concurrent crime relationship under the first clause of Article 37 of the Criminal Act (형법), the judgment below must be reversed in its entirety.
11. Accordingly, the opinions of the participating Justices being unanimous to reverse the judgment below and remand the case to the court below for further hearing and determination, it is so ordered as set forth in the Order.