[1] The requirements to exclude the application of the National Security Act as it constitutes Article 3 of the Inter-Korean Exchange and Cooperation Act

[2] The elements for establishing a crime of meeting under Article 8 (1) of the National Security Act

[3] The concept of national secret and its criteria under the National Security Act

[4] The case holding that the contents of divulgence of personal information of long-term visitors to South Korea's unclaimed long-term prisons, prisons, clothes, living conditions, living conditions, etc. adjacent to the vacant cable, and the movement of South Korea to find ground excavation constitute State secrets under the National Security Act

[1] Article 3 of the Inter-Korean Exchange and Cooperation Act provides that "the acts aimed at the inter-Korean exchange and cooperation, such as coming to and going to and going to and going to and going to and from South Korea, trade, cooperative projects, and provision of telecommunications services, shall take precedence over other Acts to the extent deemed justifiable." Thus, if the acts of going to and going to and from South Korea constitute the above provision, so as to be excluded from the application of the National Security Act, such acts shall aim at the inter-Korean exchange

[2] The crime of meeting under Article 8 (1) of the National Security Act is established with the knowledge of the fact that the crime of meeting is an interest of an anti-government organization or with the knowledge of the fact that it may endanger the existence, security or democratic fundamental order of the State, and thus, is established with its members or persons who have received its order. It does not require a prior common intention between the meeting members unless it is a meeting at a completely different level from that of courtesy and private school level, and it does not necessarily require a prior common intention, but it is sufficient to discuss or determine certain matters in the course of a series of activities for the accomplishment of its purpose.

[3] In interpreting the secrets under Article 4 (1) 2 (b) of the National Security Act, the secrets are all facts, goods, or knowledge which are benefits of the Republic of Korea that they are not confidential or confirmed to anti-government organizations with respect to each aspect of politics, economy, society, culture, etc., and they should not belong to the facts, goods, or knowledge widely known to the general public through lawful procedures, etc. in Korea, and if disclosed, they must have substantial value to protect the secrets as they could cause danger to the national safety. However, in light of various circumstances such as the degree of development of mass media or means of communication such as newspapers, etc., the scope of reading and listening, and the subject of publication, etc., if it is judged that there is no need to detect, collect, confirm, and verify them, and whether there is a substantial danger in divulgence, the issue of whether there is a substantial danger should be determined if disclosed, and it constitutes a danger of disclosure and sound danger to the Republic of Korea, even if disclosed.

[4] The case affirming the judgment of the court below holding that the contents leaked by the defendant constitute a secret under Article 4 (1) 2 (b) of the National Security Act, on the ground that the above contents are not widely known to the general public to the extent that it does not require detection, collection, confirmation, and verification, and that there is a need to not be disclosed to anti-government organizations in order to prevent disadvantages to the national safety, and that there is a substantial value that can be seen that if disclosed, there is a need not be disclosed to the general public and that there is a substantial risk to the national security, and that there is a secret under Article 4 (1) 2 (b) of the same Act

[1] Article 3 of the Inter-Korean Exchange and Cooperation Act / [2] Article 8 (1) of the National Security Act / [3] Article 4 (1) 2 (b) of the National Security Act / [4] Article 4 (1) 2 (b) of the National Security Act

[1] Supreme Court Decision 92Do1211 delivered on August 14, 1992 (Gong1992, 2711), Supreme Court Decision 92Do1815 delivered on February 9, 1993 (Gong1993Sang, 1025), Supreme Court Decision 96Do2158 delivered on November 12, 196 (Gong1996Ha, 3648) / [2] Supreme Court Decision 90Do1285 delivered on August 24, 1990 (Gong190, 205) (Gong193Ha, 3120), Supreme Court Decision 93Do1951 delivered on October 8, 193 (Gong1993Ha, 3120), Supreme Court en banc Decision 97Do2979 delivered on September 26, 1995 (Gong197Do197599 delivered on September 29, 197)

Defendant

Defendant

Attorneys Park Jong-soo et al., Counsel for the defendant

Seoul High Court Decision 97No531 delivered on June 12, 1997

The appeal is dismissed. 80 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal by the defendant and his defense counsel are also examined.

1. The protocol of interrogation of the defendant prepared by the public prosecutor is admissible unless there is any reason to suspect that the defendant's statement recorded in the protocol is not made arbitrarily in case the defendant's statement is admitted to be made in the court room, and in case where there is a dispute as to whether the defendant's statement is voluntary, the court shall judge it with free inter alia by taking into account all the circumstances such as the form and contents of the protocol, the academic background, career, and the degree of intelligence according to the specific case (see Supreme Court Decisions 93Do3318 delivered on February 8, 1994, 95Do208 delivered on November 10, 1995).

According to the records, the defendant appears to have made a detailed statement on the facts charged of this case and facts related thereto after being investigated by the prosecutor several times, and when considering the defendant's statement, academic background, career, social status, intelligence level, etc. related to the crime in the court of law, even if the defendant had been under pressure at the time of being investigated by the judicial police officer of the prosecutor's office, such psychological state does not appear to have been extended until the prosecutor's investigation was conducted, and thus, it does not appear to have been arbitrarily stated. Thus, there is no reason to discuss the admissibility of the suspect examination protocol against the defendant prepared by the prosecutor

2. Article 3 of the Inter-Korean Exchange and Cooperation Act provides that "this Act shall apply in preference to other Acts within the extent deemed justifiable with respect to activities aimed at inter-Korean exchange and cooperation, such as traveling between South and North Korea, trade, cooperative projects and provision of telecommunications services, etc." Thus, in order to exclude the application of the National Security Act as it falls under the above provision, first of all, the visit between South and North Korea shall aim at inter-Korean exchange and cooperation (see Supreme Court Decisions 92Do1211, Aug. 14, 1992; 92Do1815, Feb. 9, 193; 96Do2158, Nov. 12, 1996, etc.). In light of the evidence admitted by the court of first instance as cited by the court below, it is not necessary to find that the purpose between North Korea and North Korea is not for the purpose of inter-Korean exchange and cooperation as well as for the purpose of application of the above provision."

3. Examining the evidence duly examined and adopted by the first instance court in the record, the fact that the defendant escaped to North Korea under the control of an anti-government organization can be sufficiently recognized with knowledge of the fact that it may endanger the existence and security of the State or democratic fundamental order. Thus, the court below's decision which applied the crime of escape under the National Security Act to the crime of escape under the judgment of the defendant is just and there is no violation of the rules of evidence such as theory of lawsuit or misapprehension of legal principles, and further, according to the above evidence, it seems that the defendant was not in the state of mental disorder or mental and physical disability at the time of escape. Thus, the court below's

4. In light of the Defendant’s age, degree of knowledge, etc., and the circumstances of escape to North Korea, the lower court determined that the Defendant meets with members of an anti-government organization, even though he could have sufficiently predicted the possibility of praiseing and encouraging the activities of anti-government organization, and that it can be recognized that the Defendant committed an escape to North Korea without permission, and that the Defendant meets with the members of an anti-government organization even though he was aware that it may endanger the nation’s existence and security or democratic fundamental order, and sufficiently recognized the facts that praise and encourage the activities of an anti-government organization.

In light of the records, the judgment of the court below is just and there is no error of law such as misunderstanding of legal principles.

In addition, the crime of meeting under Article 8 (1) of the National Security Act is established with the knowledge of the fact that the crime of meeting is an interest of an anti-government organization, or with the knowledge of the fact that it may endanger the existence, security, or democratic fundamental order, and it is established with the member or the person who is ordered to do so. It does not require a prior intention between the meeting, unless it is a meeting at a entirely different level from ordinary and ordinary level, and it does not necessarily require a prior intention, but it does not necessarily require a discussion or decision on certain matters, and it is sufficient to recognize it as a group in a series of activities for the accomplishment of purpose (see Supreme Court Decisions 90Do1285 delivered on August 24, 199, 93Do1951 delivered on October 8, 1993, and 95Do1624 delivered on September 26, 1995).

5. In interpreting the secret under Article 4(1)2(b) of the National Security Act, the secret is all facts, goods, or knowledge that the secret is a benefit of the Republic of Korea as to each aspect of politics, economy, society, culture, etc., and that it is not confidential or confirmed against anti-government organizations. They should not belong to the facts, goods, or knowledge widely known to the general public through lawful procedures, etc. in the Republic of Korea. In addition, if the content is leaked, it should have the substantial value to protect the secret as it is likely to cause danger to the national safety.

However, in light of various circumstances, such as the degree of development of mass media and means of communication such as newspapers, the scope of readers and listening, and the subject of publication, etc., the issue of whether it is publicly announced shall be determined in accordance with sound common sense and social norms, considering the fact that there is no need to detect, collect, confirm, and verify any more by anti-government organizations or persons ordered by the anti-government organizations or persons ordered by the anti-government organizations. Whether there is any substantial danger in divulgence or not shall be determined according to the sound common sense and social norms, considering the comparison status and security situation with the Republic of Korea, North Korea, or other anti-government organizations at the time of collecting the secret. Even if the secret is minor, if it is evident that there is a clear danger that if leaked, it will benefit anti-government organizations and would incur any disadvantage to the Republic of Korea (see Supreme Court en banc Decision 97Do985, Jul. 16

In the same purport of the court below, the facts charged that the defendant disclosed to the members of the anti-government organization are not widely known as to the general public to the extent that it is not necessary to detect, collect, confirm, and verify personal information of the long-term number of persons who have not yet passed in South Korea, the number of prisons, the status of clothes, the living conditions of the prison, the situation of the village, etc., and the movement of South Korea to find the ground excavation, etc., and these contents are not widely known to the general public. In addition, the necessity not to be known to the anti-government organization to prevent any disadvantage to the national safety, and the substantial value that can be seen as the divulgence of the disclosed contents constitutes a secret under Article 4 (1) 2 (b) of the National Security Act, and there is no error of law such as misapprehension of legal principles. The arguments are without merit.

6. The court below rejected the defendant's assertion that the defendant's act was not punishable as an act forced by all, in full view of various circumstances such as the defendant's voluntary entry into North Korea, and without any special assault or intimidation, prepared a rumor of praises, encouraging the activities of anti-government organizations, and leaked national secrets. In particular, even if the defendant's statement was based on his own statement, it is stated that he avoided his answer despite his question by the North Korean authority as to the part deemed to constitute military secrets. In light of the circumstances, the court below rejected the defendant's act as an act coerciond by all at the time of the crime, and the defendant's act cannot be punishable. In light of the records, it is justified in the court below's decision.

7. The argument that the sentence of the court below is too harsh cannot be a legitimate ground for appeal in this case where a minor sentence is sentenced to imprisonment with prison labor for more than ten years.

8. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)