[1] Whether the part of the former strategic materials export notice announced by the Minister of Commerce, Industry and Energy by delegation of Article 21(3) and (4)2 of the former Foreign Trade Act (Notice No. 2002-123 of the Ministry of Commerce, Industry and Energy), which “an area likely to impair international peace and regional security,” stipulated as export restricted area, is contrary to the clarity principle required by the principle of legality (affirmative

[2] Whether a crime of violating Articles 17(1) and 13 of the former Technology Development Promotion Act is established when a strategic technology is exported without asking whether an export-related land is a restricted area for export (affirmative)

[1] Articles 21 (see current Article 19), 54 subparagraph 2 (see current Article 53 (1) 1) of the former Foreign Trade Act (Amended by Act No. 8185, Jan. 3, 2007); Articles 12 (1) and 13 (1) of the Constitution of the Republic of Korea / [2] Articles 13 ( Deletion of current Act) and 17 (1) of the former Technology Development Promotion Act (Amended by Act No. 7809, Dec. 30, 2005); Article 25 (current Deletion) of the former Enforcement Decree of Technology Development Promotion Act (Amended by Presidential Decree No. 19553, Jun. 29, 2006)

Defendant 1 and 11 others

Defendants (Defendant 1, 5, 6) and the Prosecutor

Law Firm Sejong and nine others

Seoul Central District Court Decision 2007No4067 Decided April 25, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

Article 21 of the former Foreign Trade Act (amended by Act No. 8185, Jan. 3, 2007; hereinafter “former Foreign Trade Act”) provides that “The Minister of Commerce, Industry and Energy may impose restrictions on persons who intend to export strategic items, including permission for export from the head of the administrative agency concerned, if deemed necessary for international peace and security maintenance, and for national security (paragraph (1)).” Paragraph (3) of the same Article provides that the export restrictions shall include an area in which export is restricted (paragraph (4) 2 of the same Article).” Article 54 subparagraph 2 of the former Foreign Trade Act provides that “Any person who exports strategic items to an area in which export is restricted by the Minister of Commerce, Industry and Energy pursuant to the provisions of Article 21(1) of the former Foreign Trade Act, without permission for export, shall be punished by imprisonment for not more than five years or by a fine not exceeding three times the international value of goods exported, etc.” (Article 21(3) of the former Foreign Trade Act provides that “an area in which export is restricted by Ordinance No. 2130(4).

As such, the "area which is likely to disrupt international peace and regional safety" in Article 48 of the former strategic materials export and import notice is an element to supplement the elements of penal law. This is, even according to its content itself, so long as there is no reasonable standard to limit it, it is too broad and unclear as an element of penal law. Furthermore, considering the legislative purpose of the former Foreign Trade Act, its entire content and structure, the process of amendment of the Act, etc., it is difficult to find reasonable interpretation criteria to standardized or limit the types of areas that meet the elements of the crime, even if ordinary people have the ability to discern things, and it is also difficult to find reasonable understanding and judgment as an element of the crime.

Therefore, since Article 48 of the former Notice of Export and Import of Strategic Items is null and void, the Defendants cannot be punished for a violation of Article 54 subparagraph 2 of the former Foreign Trade Act even if they exported strategic items to the Myanmar without export permission.

In the same purport, the judgment of the court below which affirmed the judgment of the court of first instance which invalidated Article 48 of the former Public Notice, which is a applicable provision of law, on the "an act of exporting strategic items in Myanmar without export permission", which is the facts charged No. 1 through No. 30 of the attached Table 1 of the court of first instance against the Defendants, is just, and there is no violation of the misapprehension of the legal principles as to the principle of no punishment without law as alleged in the

2. As to the grounds of appeal by Defendant 1, 5, and 6

A. Defendant 1’s ground of appeal No. 1

In order for a certain act to be subject to punishment under the principle of no crime without the law, the legal provisions, which are the basis of punishment, must be based on the premise of demanding or prohibiting certain acts, as the defendant pointed out.

Article 21(1) of the former Foreign Trade Act provides a ground for an export permit even if a person who intends to export strategic items does not directly impose an obligation to export strategic items, and Article 54, which is the penal provision of this case, provides that the person subject to the punishment of this case, shall be “a person who violates Article 21(1),” instead of providing that the person subject to the punishment of this case shall be “a person who exports strategic items as an export restricted area without an export permit under Article 21(1),” thereby imposes an obligation to obtain an export permit on the person who exports strategic items to an export restricted area.

Therefore, the judgment of the court below which found the defendant guilty of the charges Nos. 31 and 32 as stated in the first instance court [1] No. 31 and 32 on the premise that the person who exports strategic items to export restricted areas for export has an obligation to obtain export permission, is justified, and there is no error in the misapprehension of legal principles as to the principle of no punishment without a law as alleged in the grounds of appeal. The Supreme Court decision pointing out in the grounds of appeal is against the penal provision different from that of the instant penal provision, and it is not appropriate to invoke

B. Defendant 1’s ground of appeal Nos. 2 and 5 and 6’s ground of appeal No. 3, subject to export approval

Article 17(1) of the former Technology Development Promotion Act (amended by Act No. 7809, Dec. 30, 2005; hereinafter “former Technology Development Promotion Act”) which provides that “any person who exports strategic technology without obtaining the approval under Article 13 shall be punished by imprisonment for not more than three years or by a fine not exceeding 10 million won.” Article 13 of the former Technology Development Promotion Act provides that “any person who intends to conclude a technology export contract shall obtain the approval of the Minister of Science and Technology before entering into the technology export contract on strategic technology (Paragraph 1), the scope of strategic technology and the approval of export contract shall be prescribed by the Presidential Decree (Paragraph 2).” According to the above provisions, the target of punishment is limited to the act of exporting strategic technology without obtaining the approval of the Minister of Science and Technology, and the export is not required to be an “export with restricted export area.”

Although Article 25(1) of the former Enforcement Decree of the Technology Development Promotion Act (amended by Presidential Decree No. 19553, Jun. 29, 2006; hereinafter “former Enforcement Decree of the Technology Development Promotion Act”) provides that “the scope of strategic technology and export restriction area, etc. shall be determined and publicly notified by the Minister of Science and Technology after consultation with the heads of administrative agencies concerned.” Article 19 of the former Enforcement Decree of the Technology Development Promotion Act (amended by the Ministry of Science and Technology Notice No. 2004-26, Oct. 20, 2004; hereinafter the same shall apply) provides that “an area that is likely to undermine international peace and regional safety may be restricted export of strategic technology” but Article 25(4) of the former Enforcement Decree of the Technology Development Promotion Act provides that “The Minister of Science and Technology may suspend or cancel the approval where the approved strategic technology could be leaked to export restricted areas, and it does not require the approval of the Minister of Science and Technology to export restricted areas.”

For the same purport, the Minister of Science and Technology must obtain approval in the case of strategic technology export regardless of whether the export target is an export-restricted area. Therefore, the judgment of the court below which found the Defendants guilty of violating the Technology Development Promotion Act against the Defendants on the premise that the act of exporting strategic technology without approval is punished, regardless of whether the provision on the export restricted area violates the principle of clarity, which is derived from the principle of no punishment without law, is just, and there is no error in the misapprehension of legal principles as to strategic technology export

C. The part concerning the co-principal among the grounds of appeal Nos. 2 and 3 by Defendant 5 and 6

This part of the grounds of appeal is not legitimate grounds of appeal merely because it criticizes the selection of evidence and the recognition of facts, which are the exclusive authority of the court below, which is the fact-finding court, and also does not constitute legitimate grounds of appeal in light of the judgment below and the evidence duly admitted by the court below, it is just to determine that the court below recognized the defendants' joint principal relation for reasons as stated in its judgment, and there is no violation

In addition, the "principle of penalty penalty not to be imposed" mentioned by the defendants should not be applied retroactively to the acts prior to the legislation, and since it is a situation after the legislation of the punishment provision has already been made at the time of the acts listed in the [Attachment 1] Nos. 31 and 32 of the first instance court [Attachment 1], there is no room for applying the above principle.

This part of the grounds of appeal cannot be accepted.

D. Defendant 5 and 6’s ground of appeal No. 4

Since the court of final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to the judgment of the appellate court are not different from the scope of the judgment of the court of final appeal, so it cannot be considered as the grounds of final appeal for reasons other than those which the defendant did not assert as the grounds of appeal in the appellate court or are subject to the judgment of the appellate court ex officio. This part of the grounds of final appeal are asserted in the grounds of final appeal by the defendants as the grounds of appeal

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)