[4 KCCR 64, 89Hun-Ka104, February 25, 1992]

A. Background of the Case

This case found that Articles 6, 7 and 10 of the Military Secret Protection Act (hereinafter MSPA) are constitutional insofar as they apply only to detection, collection and leakage of military secret that pose a clear danger to national security.

MSPA (Law No. 2387) provides punishment for "detection and collection of military secrets through inappropriate means (Article 6)," "leakage of military secrets by those who detects and collects them (Article 7)," and "leakage of military secrets by those who obtained or possessed them accidentally (Article 10)." The concepts of 'military secrets' and 'inappropriate means' were criticized for being so vague that the provisions that included them violated the rule of clarity of law and the essential content of right to know.

In this case, at the request of the director of the Peace Research Institute for 'the documents being deliberated on by the National Defense Committee of the National Assembly', the defendant A, an aide to an assemblyperson, obtained from the defendant B, also an aide to another assemblyperson who was a member of the National Defense Committee, eight documents including the 'Relocation Plan of Major Military Headquarters (second class military secret)' which had been submitted by the Ministry of National Defense. They were turned over to the above mentioned director, and both A and B were prosecuted for violation of MSPA. Upon the defendants' motion, the trial court requested constitutional review of Articles 6, 7 and 10 of MSPA.

B. Summary of the Decision

The Court upheld the Articles 6, 7 and 10 of MSPA on limited constitutionality after explaining the relationship between the military secrets and the principle of statutory punishment (nulla poena sine lege):

Even though 'military secrets' may be overbroad and vague to the lay people, they are divided into class I, II, and III by the regulations, and are to be accordingly marked (Article 3 of MSPA, Article 2 (1) and 3 of its regulations). The possibility that the lay

people may commit the crime because of their inability to identify military secrets is only theoretical, and have resulted in hardly any actual problems. Hence, no violation of the rule of clarity required by the principle of statutory punishment.

"Detection and collection through inappropriate means (Article 6)" clearly denotes a violation of procedures set up by the relevant laws and regulations, and is sufficiently clear to those with ordinary sensibilities; therefore, it does not violate of the rule of clarity of law, either.

Protecting military secrets and ultimately national security is of great importance. However, the scope of military secrets should not be so broad as to reduce people's right to know, and should be limited to the necessary minimum in order to maximize the scope of the subject matter open to people's freedom of expression and right to know. Hence, 'military secrets' in Articles 6, 7 and 10 of MSPA should be interpreted narrowly to mean only the undisclosed facts classified and marked through proper procedures, the contents of which will, upon leakage, pose a clear threat to national security due to their confidential nature. Information concerning political interests or administrative expediencies (pseudo secrets) are, therefore, distinguished from those related to national security (true secrets) and are not covered by the MSPA.

When interpreted to apply only to the Article 2 (1) facts that have so much practical value as to pose a clear threat to national security, Article 6, 7 and 10 of the Act are not unconstitutional.

Dissenting, Justice Byun Jeong-soo advocated a decision of unqualified unconstitutionality while Justices Han Byong-chae, Choe Kwang-ryool, Hwang Do-yun advocated unqualified constitutionality. The President of the Constitutional Court Cho Kyu-kwang rendered a concurring opinion.

Justice Byun opined that the provisions infringe on freedom of expression and right to know about military affairs and define the elements of crimes in an impermissibly overbroad and vague manner, thus violating the principle of nulla poena sine lege. Justices Han, Choe, and Hwang found the provisions clear and concrete, satisfying the requirement of clarity, and not in violation of right to know.

The President Cho explained that a decision of limited constitutionality defines the permissible scope of interpretation of a statute, and a decision of limited

unconstitutionality carves out the prohibited area of application from an otherwise valid statute. However, they are different only theoretically: they are equally versions of a decision of partial unconstitutionality and have the same binding forces as such.

C. Aftermath of the Case

This case generated positive reactions, including one that praised it as a representative decision showing the Court's commitment to democratization of the prevalent legal system.

After this decision, the Ministry of National Defense forwarded a revised MSPA, which fully carried purports of this case, to the National Assembly, and the National Assembly passed it as total revision, not simple revision, in Act Number 4616 on Dec. 27, 1993.

The revised MSPA considerably narrows down the definition of military secrets in Article 2 to the following: "the military documents, pictures, electronic records, material of other special medium, and objects that were undisclosed to the public, and which, when leaked, are likely to cause a clear danger to national security, and were marked or notified as military secretes or guarded through other means as such, and their content." Moreover, Article 9 establishes for the first time "the right to petition for disclosure of military secrets," thereby improving on protection of people's right to know; and Article 7 allows the Minister of National Defense to disclose "if there is need to make them public" or "when the disclosure is perceived to bring outstanding benefits to national security." The Article 11 "detection and collection of military secrets through inappropriate means" was replaced by "detection and collection of military secrets not through legal means."

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