Whether or not a person who commits a espionage under Article 98(1) of the Criminal Act, or a person who detectings a State secret under Article 3 subparag. 1 of the former National Security Act, constitutes the crime of divulging military secrets or the crime of divulging national secrets separately in case where he discloses such secrets.

B. If a person who has committed a counter-espionage under Article 98(1) of the Criminal Act discloses any secret detected and collected, or where a person who has discovered and collected any State secret under Article 3 subparag. 1 of the former National Security Act discloses such secret, the person shall be deemed to have committed the two crimes inclusive, and it shall not be deemed to have committed the crime of leakage of a counter-espionage or the crime of detection and collection of a State secret and the crime of leakage of a State secret, etc.

Supreme Court Decision 81Do3063 Delivered on February 23, 1982

According to the evidence of the first instance court maintained by the court below, the facts of the judgment are duly recognized, and there is no violation of the rules of evidence or incomplete hearing, such as theory of lawsuit, and even after examining the records in detail, the protocol of examination of the accused prepared by judicial police officers is not admitted as evidence by the court below, and the protocol of examination of the suspect prepared by the prosecutor is also bound by an adviser, or the protocol of examination of the suspect prepared by the prosecutor is also compelled by an investigative agency to be a serious adviser at the investigative agency, and there is no evidence to regard that it was forced by the investigative agency to continuously make the confession made by the investigative agency as it is, even after the transfer to the prosecutor, and there is no other evidence to regard that it was forced by the prosecutor to make the confession made by the investigative agency as it is in the remaining psychological extension, even though it is widely known to the people in the crime of counter-espionage under Article 98 (1) of the Criminal Act, and it is sufficient that the court below's judgment is justified as not only the defendant's act of a counter-espionage but also the defendant's special act of collecting equipment in advance.

2. According to the facts constituting the National Security Act 2 and 5, the Defendant: (a) committed on April 17, 1975 and instructed to collect and report information from the 1, 2, and 3 executives of the Korean Federation, which are anti-government organizations, and the Korean National Assembly members’ conference for the restoration of democracy until October 14, 1975; (b) returned on October 14, 1975 to the Republic of Korea until June 8, 197; (c) the situation surrounding the 1, 3, 196, 4, 1, 1,000, 1,000, 1,000, 3,000,000, 1,0000, 1,0000,000,000,000,000,000,000,000,000,000,000,000).

However, the espionage under Article 2 of the National Security Act and Article 98 (1) of the Criminal Act mean not only the unique meaning of the secret, but also the act of detecting and collecting all matters such as politics, economy, society, culture, etc. Meanwhile, Article 3 (1) 1 of the National Security Act provides that the act of detecting and divulging the national secret shall be punished separately, and the statutory punishment is more severe than that of the espionage under Article 98 (1) 1 of the Criminal Act. Thus, the State secret under Article 3 (1) 1 of the National Security Act and Article 2 of the National Security Act and Article 98 (1) of the Criminal Act are different in importance and value from that of the espionage under Article 98 (2) of the National Security Act, and it is interpreted that the 1.6th of the judgment below is erroneous in understanding that the 2nd of the 1st of the 3th of the 1st of the 1st of the 1st of the 2nd of the 3th of the 1st of the 2nd of the 3th of the 1st of the 1st of the judgment.

After all, the judgment of the court below is clear that there are errors in the application of the above laws, and affected the conclusion of the judgment, and since the above facts are concurrent crimes with other crimes (violation of Public Law, etc.) recognized by the court below, all of the judgment below is not dismissed.

Therefore, the judgment below is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jong-young (Presiding Justice)