[Defendant] Defendant 1 and 2 others
[Appellant] The Defendants and the Prosecutor
[Defense Counsel] Attorney Jeong Jae-seong of Law Firm Busan
[Judgment Below] Busan District Court Decision 2009No707 dated February 17, 2010
[Order]
All appeals are dismissed.
[Reasoning] The grounds of appeal are examined.
1. As to the Defendants' grounds of appeal
A. As elements of the crime of propagating or sympathizing with the activities of an anti-state organization, etc. under Article 7(1) of the National Security Act (국가보안법), "propaganda" means making an unspecified number of persons or the public aware of the content or purpose of the activities of an anti-state organization, etc. so as to seek their understanding or sympathy, and "sympathizing" means making assertions with the same content as, or engaging in acts consistent with, the propaganda, agitation, or activities of an anti-state organization, etc., thereby responding to or joining in the activities of the anti-state organization, etc. In this regard, the act of "propaganda" or "sympathizing" must reach a degree that poses a clear and present danger of substantial harm to the existence and safety of the State or to the basic free democratic order (see Supreme Court Decision 2001Do4328 delivered on September 23, 2003; Supreme Court en banc Decision 2003Do758 delivered on April 17, 2008, etc.). Furthermore, in order for expressive material to be recognized as material benefiting the enemy under Article 7(5) of the National Security Act, the content of the expressive material must be positive and aggressive in a manner that threatens the existence and safety of the State and the basic free democratic order, which are the legal interests protected by the National Security Act, and whether such expressive material has the character of benefiting the enemy must be determined by comprehensively considering not only the overall content of the expressive material but also the motive for its production, 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. In addition, the crime under Article 7(5) of the National Security Act is established by producing, importing, copying, possessing, transporting, distributing, selling, or acquiring documents, drawings, or other expressive materials for the purpose of engaging in the enemy-benefiting acts prescribed in paragraph (1), etc. of the same Article, and constitutes a so-called purpose crime. In a purpose crime, the "purpose" is a super-subjective element of illegality required for the establishment of the crime, separate from intent, and since the burden of proving the facts constituting the elements of the prosecuted crime in a criminal trial lies with the prosecutor, in order to recognize the establishment of the crime under Article 7(5) of the National Security Act, the prosecutor must prove that the actor had the purpose of engaging in an enemy-benefiting act. In this regard, the mere fact that the actor recognized the material as benefiting the enemy and performed acts such as producing, importing, copying, possessing, transporting, distributing, selling, or acquiring such material as prescribed in Article 7(5) of the National Security Act in relation thereto cannot itself give rise to a presumption that the actor had the purpose of engaging in an enemy-benefiting act. However, where there is no direct evidence proving that the actor had the purpose of engaging in an enemy-benefiting act, the court may determine whether the actor had such purpose by comprehensively considering, in addition to the various circumstances indicative of the enemy-benefiting nature of the expressive material as noted above, indirect facts such as the actor's career and status, the circumstances under which the actor came to engage in the acts prescribed in the above provision in relation to the enemy-benefiting material, whether the actor joined an enemy-benefiting organization, and the connection between the enemy-benefiting material and the actual goals and activities of the enemy-benefiting organization to which the actor belongs (see Supreme Court en banc Decision 2010Do1189 delivered on July 23, 2010, etc.).
Meanwhile, where character information stored by being entered into a computer disk or other similar information storage medium, or a printout thereof, prepared by the defendant or a person other than the defendant, is used as evidence, this is substantially no different from a written statement prepared by the defendant or a person other than the defendant or a document recording such statement. In light of the fact that there is a possibility of manipulation in the process of storage and printing after seizure, and that, in principle, no opportunity for cross-examination is guaranteed, the hearsay rule applies to the truthfulness of its content. Therefore, in principle, such evidence may be used as evidence only where the authenticity of its preparation has been proven by the statement of its preparer or the person making the statement, pursuant to Article 313(1) of the Criminal Procedure Act (형사소송법). However, where the very existence of character information with such content stored in an information storage medium, rather than the truthfulness of the content of such character information, itself becomes direct evidence, the hearsay rule does not apply (see Supreme Court Decision 99Do2317 delivered on September 3, 1999, etc.).
B. The gist of the facts charged in this case is that the Defendants, as teachers belonging to the Reunification Committee of the ○○ Branch of the Korean Teachers and Education Workers' Union (전국교직원노동조합; hereinafter referred to as the "Jeongyojo"), while holding a "Reunification School" for teachers of the ○○ Branch of Jeongyojo, produced and distributed the "Reunification School Reference Materials," which is expressive material containing content that adopts as is, justifies, or glorifies North Korea's ruling line, including its perception of history that praises Kim Il-sung and the Communist Party and its "Military-First Politics (Songun politics)," for the purpose of propagating or sympathizing with the activities of North Korea, an anti-state organization, and lectured on the content of the said "Reunification School Reference Materials" to the teachers taking the Reunification School course, thereby propagating or sympathizing with the activities of North Korea, an anti-state organization.
In this regard, the court below, comprehensively considering the evidence adopted by the court of first instance, determined that the "Reunification School Reference Materials" produced and distributed by the Defendants constituted material benefiting the enemy under the National Security Act, and further, comprehensively considering the circumstances indicated in the judgment as recognized by the above evidence, determined that the Defendants had the purpose relating to the enemy-benefiting act under Article 7(5) of the National Security Act and the intent relating to propagating or sympathizing with the activities of an anti-state organization under paragraph (1) of the same Article, thereby finding all of the above facts charged guilty.
C. (1) According to the reasoning of the judgment below and the record, among the evidence adopted by the court of first instance and maintained by the court below, it can be seen that the following investigation reports: Investigation Report (Results of the September 2 Reunification Committee Meeting), Investigation Report (List of Members of the ○○ Branch of the National Conference Organization), Investigation Report [Results of the 11th Steering Committee Meeting of the ○○ Branch (Preparatory) of the National Conference], Investigation Report [Results of the 12th Steering Committee Meeting of the ○○ Branch (Preparatory) of the National Conference], Investigation Report (Materials from the 3rd Steering Committee Meeting of the 1st Term of the ○○ Branch of the National Conference), Investigation Report (Materials from the 8th Steering Committee Meeting of the 1st Term of the ○○ Branch of the National Conference), Investigation Report (Materials from the 10th Meeting of the 1st Term of the ○○ Branch of the National Conference), Investigation Report [National Conference Project Evaluation and Tasks (Jeongyojo) - 2007 Outlook], Investigation Report (2006 Membership Retreat of the ○○ Branch of the National Conference and Appraisal Report), Investigation Report (Reference Materials from the 2nd Steering Committee Meeting of the 2nd Term of the ○○ Branch of the National Conference), Investigation Report (Policy Discussion Meeting Reference Materials), Investigation Report (Analysis of Policy Discussion Meeting Reference Materials of the ○○ Branch of the National Conference), Investigation Report (Production and Distribution of Basic Education Reference Materials), Investigation Report (Basic Education Reference Materials and Appraisal Report), Investigation Report (Founding General Meeting of the ○○ Branch of the National Conference), Investigation Report (1st Executive Committee Materials Relating to Attendance at the Founding General Meeting), Investigation Report (1st Meeting of the Education Committee of the ○○ Branch of the National Conference), Investigation Report (2nd Meeting of the Education Committee of the ○○ Branch of the National Conference), Investigation Report (2006 Regular General Meeting Reference Materials of the ○○ Branch of the National Conference), Investigation Report (CD: Modern Joseon History, 4th and 5th Congresses of the Workers' Party of Korea, Complete Works on Juche Ideology, etc.), Investigation Report [CD: Non-Indicted 1 - North (Joseon)'s Military-First Politics and the Situation on the Korean (Joseon) Peninsula, etc.], Investigation Report (Financial Status, etc. of the ○○ Branch of the National Conference), and Investigation Report (Acquisition of Documents Related to the National Conference from Defendant 2's Residence) each describe the circumstances under which the investigative agency obtained the materials attached to each of the above investigation reports, the content of such materials, and their relevance to the suspected facts, and each attached material is a printout of character information stored in an information storage medium, the preparer of which has not been identified or the authenticity of whose preparation has not been proven by the statement of the preparer or the person making the statement.
(2) Among the above evidence, with respect to Investigation Report (Basic Education Reference Materials and Appraisal Report), Investigation Report (CD: Modern Joseon History, 4th and 5th Congresses of the Workers' Party of Korea, Complete Works on Juche Ideology, etc.), Investigation Report [CD: Non-Indicted 1 - North (Joseon)'s Military-First Politics and the Situation on the Korean (Joseon) Peninsula, etc.], and Investigation Report (Acquisition of Documents Related to the National Conference from Defendant 2's Residence), it is recognized, according to the reasoning of the judgment below and the evidence lawfully adopted by the court of first instance and maintained by the court below, that each attached material was not intended to prove the truthfulness of its content as the fact to be proven, but rather was intended to prove that the material itself constituted material benefiting the enemy, or that the relevant attached material obtained by the investigative agency from Defendant 2's residence was identical to the existing evidence discovered at the office of the ○○ Branch of the National Conference, etc., such that the very existence of material containing such content is the fact to be proven by the evidence, and that Non-Indicted 2, a police officer who prepared each of the above investigation reports, appeared as a witness at the trial date of the court of first instance and testified regarding the authenticity of their preparation.
Examining this in light of the legal principles concerning admissibility of evidence set forth above, each of the above attached materials cannot be said to be evidence to which the hearsay rule applies, and there is no other ground to exclude their admissibility, and since each of the above investigation reports is a document summarizing and explaining the circumstances of acquisition and content of such attached materials, and the authenticity of their preparation has been proven by the statement of the preparer at the trial date, they may be used as evidence pursuant to Article 313(1) of the Criminal Procedure Act. Therefore, there is no error in violation of the rules of evidence as argued in the grounds of appeal in the measure of the court below maintaining the court of first instance, which adopted each of the above investigation reports as evidence.
(3) Meanwhile, with respect to the remaining investigation reports among the above evidence, if the court below adopted the content of the attached materials as evidence with the truthfulness of such content as the fact to be proven, and, on that premise, used each of the above investigation reports as evidence of guilt against the Defendants to recognize the circumstances indicated in the judgment concerning the connection between the Defendants' acts and the ○○ Branch of the National Conference of Democratic Workers, such measure cannot be said to be lawful. This is because, in light of the legal principles concerning admissibility of evidence set forth above, in such a case, the materials attached to each of the above investigation reports cannot be recognized as admissible due to the hearsay rule, and investigation reports that merely summarize and explain the content of such inadmissible evidence likewise cannot be used as evidence of guilt.
However, even excluding the above evidence or the circumstances indicated in the judgment below concerning the connection between the Defendants' acts and the ○○ Branch of the National Conference of Democratic Workers, examining the remaining evidence lawfully adopted by the court of first instance and maintained by the court below in light of the legal principles concerning the interpretation of Article 7(1) and (5) of the National Security Act set forth above, the measure of the court below in determining that the "Reunification School Reference Materials" in this case constitute material benefiting the enemy under paragraph (5) of the same Article, and that the Defendants' act of lecturing on its content to the teachers taking the Reunification School course constitutes propagating or sympathizing with the activities of an anti-state organization under paragraph (1) of the same Article, is justifiable.
Furthermore, according to the reasoning of the judgment below and the evidence lawfully adopted as above, it is recognized that the Defendants produced the "Reunification School Reference Materials" for use as teaching materials in the Reunification School lectures, which constitute an act of propagating or sympathizing with the activities of an anti-state organization, and distributed them to the teachers taking the course. Examining this in light of the above legal principles, the measure of the court below in determining that the Defendants had the purpose of engaging in an enemy-benefiting act under Article 7(5) of the National Security Act, and, on that basis, finding all of the above facts charged guilty, can be affirmed as justifiable.
In the end, even if there was an error in the court below's measure of using the remaining investigation reports as evidence of guilt against the Defendants and recognizing some indirect facts thereby, this cannot be said to have affected the judgment.
(4) Therefore, there is no illegality in the judgment below that affected the judgment by misapprehending the facts in violation of the rules of evidence or by departing from the limits of free evaluation of evidence in violation of the rules of logic and experience, as argued in the grounds of appeal.
2. As to the Prosecutor's grounds of appeal
Since confiscation under Article 48(1) of the Criminal Act (형법) is discretionary, whether to confiscate an object falling under the requirements for confiscation is left to the discretion of the court (see Supreme Court Decision 2000Do515 delivered on September 4, 2002, etc.).
According to the reasoning of the judgment below and the record, it can be seen that the court of first instance found the facts charged against Defendant 2 guilty and sentenced the said Defendant to imprisonment for 10 months, suspended for 2 years; that Defendant 2 appealed, asserting mistake of facts or misapprehension of legal principles and unfair sentencing, etc., and the prosecutor also appealed on the ground that the sentence rendered by the court of first instance was too light and that it was erroneous not to confiscate the seized book "History Dictionary," etc.; that the court below rejected Defendant 2's assertion concerning mistake of facts or misapprehension of legal principles, but accepted the ground of appeal concerning unfair sentencing, reversed the judgment of the court of first instance, and, after conducting a new trial, rendered a new judgment sentencing the said Defendant to imprisonment for 6 months, suspended for 1 year; and that the court below did not separately pronounce a sentence of confiscation with respect to the above books, etc.
Examining the above facts in light of the legal principles and the record set forth above, insofar as the court below, having accepted Defendant 2's ground of appeal concerning unfair sentencing, reversed the judgment of the court of first instance and rendered a new judgment sentencing a punishment without taking measures for confiscation of the above books, etc. under Article 48(1) of the Criminal Act, the merits of the prosecutor's above ground of appeal must be deemed to have already been determined. Furthermore, it is not clear whether the requirements for confiscation under Article 48(1) of the Criminal Act have been satisfied with respect to the above books, etc., and even if such requirements were satisfied, it cannot be said that the court below's failure to pronounce a sentence of confiscation therefor constitutes a measure exceeding the limits inherent in its discretion.
Therefore, there is no illegality in the judgment below that affected the judgment by violating Article 369 of the Criminal Procedure Act concerning the method of describing the appellate court's judgment or by misapprehending the legal principles concerning confiscation under Article 48(1) of the Criminal Act, as argued in the grounds of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and it is so decided by the unanimous consent of the participating Justices as set forth in the Order.
Chief Justice Lee Sang-hoon (Presiding Justice), Justice Shin Young-chul, Justice Kim Yong-deok, Justice Kim So-young (Justice in Charge)