[2] Whether a matter already known to a foreign country constitutes "diplomatic secrets"

[3] The case holding that it does not constitute a divulgence of diplomatic secrets to inform the government of the fact that the government controls the report of the domestic media in the form of so-called report guidelines with respect to the foreign policies or activities of our country already reported to a foreign press

[2] A matter widely known to a foreign country cannot be deemed as a diplomatic policy interest because it cannot be deemed as confidential or confirmed, barring special circumstances. Thus, it does not constitute a diplomatic secrets.

[3] The case holding that it does not constitute a divulgence of diplomatic secrets to inform the government of the fact that the government controls the news reports of the domestic media in the form of so-called news guidelines with respect to the foreign policies or activities of our country already reported to a foreign press

The term "diplomatic secrets" in Article 113(1) of the Criminal Code means all information and data which should be viewed by the state in relation with a foreign country and which are beneficial to the Republic of Korea as confidential or not verified in relation to a foreign country in foreign policy.

According to the facts duly established by the court below, all of the matters which the defendants were prosecuted as a foreign secret among the matters disclosed in the letter of "end" or "end" shall be presumed to have been distributed to the foreign press prior to the above disclosure or through external communication. Thus, in light of today's development of various mass media, rapid development of information industry, and the smooth exchange of information thereby, it is reasonable to view that these matters could have been easily known to other foreign countries than the reported country. This circumstance does not constitute a foreign secret because it cannot be said that the contents already known to a foreign country are confidential or not verified, unless there are special circumstances.

Even if the contents of the defendants' disclosure are widely known to a foreign country, there is no prosecutor's assertion or proof on the fact that the Korean government does not officially notify or confirm the existence or authenticity of the contents of the foreign policy to a foreign country. However, there is no prosecutor's assertion or proof on the fact that the contents of the defendants' disclosure constitute the above cases for any reason. In addition, even if part of the contents of the defendants' disclosure constitutes the above, the contents of the defendants' disclosure are not widely known to a foreign country itself, but can be a diplomatic secret. However, the official opinion or opinion of the Korean government on the existence or authenticity of such contents can only be a diplomatic secret. According to the records, the defendants' disclosure is limited to disclosure of the fact that the government controlled the media in the form of a request to refrain or prohibit the press by sending the so-called "report guidelines" to a foreign media company, and the contents of the defendants' disclosure are not sufficient to confirm the existence or absence of a foreign secret, as well as the official opinion or opinion of the Korean government as to the above facts.

Therefore, although the court below's decision of not guilty as to the defendant's divulgence of foreign secrets among the facts charged in this case is somewhat insufficient, it is just, and there is no error of law by misunderstanding the legal principles that affected the conclusion of the judgment. The argument is without merit.

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)