A. Whether the former National Security Act violates the Constitution of the Republic of Korea or infringes on the essential elements of the principle of no punishment without law

B. Whether North Korea can be deemed not an anti-government organization under the former National Security Act on the ground that there was 7.7 Declaration, etc.

(c) The elements of a crime of receiving money and valuables under Article 5 (2) of the same Act;

(d) The case that "foreign headquarters of the Korean unification Korea" is an immigration organization;

(e) the criteria for determining the representation of an aptitude under Article 7(5) of the same Act;

(f) the meaning of national secrets as defined in Article 4(1)2 of the same Act;

A. The principle of international peace and peaceful unification declared in Articles 4 and 5 of the Constitution is based on the premise that it does not harm the whole free and democratic fundamental order of the Republic of Korea, which is the basic order of free democracy. Thus, in the situation where it is obvious that North Korea has not given up the waiver of the fundamental order of free democracy in our society with military power, and it is clear that there is a threat to our free democratic basic order, the former National Security Act (amended by Act No. 4373 of May 31, 1991) aimed at securing the national security and the lives and freedom of citizens by regulating anti-state activities that may endanger the national security, cannot be deemed as a violation of the Constitution. The concept of each element of crime under the former National Security Act, which is reasonably interpreted in light of the purpose of the law, cannot be deemed as a violation of the principle of no punishment without the law, since it is ambiguous and broad.

B. In a situation where it is obvious that North Korea is a threat to our free democratic basic order, the Korean government used the name of North Korean authorities to propose a normal conference to discuss reconciliation, cooperation, and unification between South and North Korea Koreans, and there was a declaration of opening policies related to North Korea, such as the name of 7.4 South and North Korea joint name and 7.7 Declaration, etc., and South and North Korea joined the United Nations at the same time, and thus North Korea joined the United Nations at the same time, and even if North Korea was approved as one sovereign State in the international community, North Korea cannot be deemed as an anti-government organization under the same Act.

C. The crime of accepting money and valuables under Article 5 (2) of the same Act is established when the other party receiving money and valuables receives money and valuables from an anti-government organization with the knowledge that it may endanger the existence and security of the State or democratic fundamental order. The purpose of receiving money and valuables is not to prevent, and it is to receive money and valuables with the knowledge that it would be an interest of an anti-government organization, and the number of money and valuables must be related to the accomplishment of the purpose of an anti-government organization.

D. In light of the fact that the core members of the co-government headquarters for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the three-party working groups in Vietnam, including the number of foreign forces, the number of nuclear weapons, the replacement of the co-government organization for peace agreement for the co-government organization for the peace of the Korean Peninsula, and the removal of all malicious laws including the National Security Act, etc., the co-government headquarters for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the co-government organization for the Korean Peninsula as the anti-government organization for the co-government organization for the co-government organization

E. If a certain representation contains active and aggressive contents that threaten the safety and free democracy of the Republic of Korea, such representation shall be deemed to be a equitable representation under the former National Security Act and Article 7(5) of the current National Security Act.

F. State secrets under Article 4 (1) 2 of the former National Security Act are all information and data necessary for the benefit of the Republic of Korea that is not confidential or confirmed against anti-government organizations. It includes all state secrets of each country relating to politics, economy, society, culture, etc., not limited to state secrets in the preceding sense. Even if public information is widely known in the Republic of Korea through newspaper articles or through a book published lawfully in the Republic of Korea, it belongs to state secrets if it is advantageous to North Korea, which is anti-government organizations, and it is likely to cause disadvantages to the Republic of Korea.

A. Articles 4, 5, and 13 of the Constitution of the Republic of Korea; Article 1 of the former National Security Act (amended by Act No. 4373 of May 31, 191); Article 2(1) and (c) of the same Act; Article 5(2) and (5) of the same Act; Article 7(3) and (5) of the same Act; Article 7(5) of the same Act; Article 4(1)2 of the same Act

A. (B) Supreme Court Decision 93Do1730 delivered on September 28, 1993 (Gong1993Ha, 3008). (B) Supreme Court Decision 92Do1211 delivered on August 14, 1992 (Gong1992, 2711). (F) Supreme Court Decision 90Do646 delivered on June 8, 1990 (Gong1990, 150), 90Do1451 delivered on September 25, 1990 (Gong190, 2224 delivered on September 27, 1992), 92Do2068 delivered on October 27, 1992 (Gong1992, 342, 1993Do1969 delivered on April 19, 195).

Yellow water (sulphical stone): Yellow stone (sulphical stone)

Defendant and Prosecutor

Attorneys Han Han-sik et al.

Seoul High Court Decision 93No3764 delivered on February 21, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The defendant and his defense counsel's grounds of appeal are also examined.

(1) The principle of international peace and peaceful unification declared by the Constitution in Articles 4 and 5 is premised on the premise that it does not harm the whole free and democratic fundamental order of the Republic of Korea, which is the basic order of free democracy. Thus, in a clear situation where it does not seem to have renounced the fundamental order of free democracy of our society with the military power of North Korea, and it is clear that there is a threat to the basic order of free democracy of our society, it cannot be deemed that the National Security Act for the purpose of securing the security of the State and the survival and freedom of the people by regulating anti-state activities that may endanger the security of our society is in violation of the Constitution. In light of the purpose of the National Security Act, the concept of each element of crime under the National Security Act, which is reasonably interpreted in light of its law, cannot be deemed to violate the fundamental contents of the principle of no punishment without the law, since the concept of each element of crime under the National Security Act, which is an ambiguous and broad range (see Supreme Court Decisions 90Do1451 delivered on September 25, 1990).

In addition, in a situation where it is obvious that North Korea is a threat to our free democratic basic order, the Korean government used the name of North Korean authorities to propose a normal conference to discuss reconciliation and cooperation among South and North Korea Koreans, and unification, and the South and North Korea joined the United Nations at the same time, including the 7.4 South and North Korea Joint Name and the 7.7.7 Declaration, etc., and thereby, North Korea joined the United Nations at the same time, and even if the North Korea was approved as one sovereign State in the international community, it cannot be said that North Korea is not an anti-government organization under the National Security Act, even if there were the same reasons as the theory, such as the agreement on inter-Korean reconciliation, infertility and exchange between South and North Korea was signed and entered into force. (See Supreme Court Decisions 92Do1211, Aug. 14, 1992; 93Do1730, Sept. 28, 1993; see each of the judgment below is justifiable, and there is no violation of law such as theory of lawsuit.

(2) The crime of accepting money and valuables under Article 5 (2) of the National Security Act is established when the other party receiving money and valuables receives money and valuables from an anti-government organization with the knowledge that it may endanger the existence and security of the State or democratic fundamental order. The purpose of receiving money and valuables is not to prevent any other purpose, and it is to receive money and valuables with the knowledge that it would be an interest of an anti-government organization, and the number of money and valuables must be related to the accomplishment of the purpose of an anti-government organization (see Supreme Court Decision 92Do2068 delivered on October 27, 1992).

The court below acknowledged that the defendant received 250,00 U.S. dollars from Non-Indicted 1 to the fund for the so-called publishing culture business rather than the original film for the long-distance film film, and that the defendant's act of receiving money and valuables constitutes a crime of receiving money and valuables under Article 5 (2) of the National Security Act, after recognizing that the defendant's act of receiving money and valuables constitutes the crime of receiving money and valuables under Article 5 (2) of the National Security Act. In light of the evidence adopted by the court below and the above legal principles, the above determination of the court below is just, and there is no error of law

The circumstances that the defendant was not a business with the direction of North Korea or for the benefit of North Korea cannot be determined by the above decision of the court below.

(3) The court below recognized that the core members of the Korea-U.S. Foreign Headquarters of the Korea-U.S. Unification Korea (hereinafter referred to as the "Korea-U.S. Headquarters") constituted an organization formed by the Korea-U.S. headquarters of the Korea-U.S. Republic of Korea (hereinafter referred to as the "Korea-U.S. headquarters") for the purpose of benefiting the North Korea-U.S. government organization, since they are those who were visiting North Korea on behalf of the North Korea-U.S. government organization or most closely related persons, they are easy to be affected by the North Korea-U.S. organization, and they include some of the declaration of common convention of the three-U.S. working groups in Vietnam, such as the number of foreign military firearms, the number of nuclear weapons, the replacement of the North Korea-U.S. union agreements with peace, the National Security Act, and other malicious laws including the National Security Act. In light of the evidence adopted by the court below and the former National Security Act (amended by Act No. 4373, May 31, 1991).

(4) If a certain representation contains active and aggressive contents that threaten the safety of the Republic of Korea and the system of free democracy, such representation shall be deemed to be a representation with respect to which the same is applicable under the former National Security Act and Article 7(5) of the current National Security Act.

The court below acknowledged that the defendant's comments containing various reporters' opinions or interviews, etc. that the defendant presented before and after his visit to North Korea and the facts that they contain the contents of praiseing and encouraging North Korea, which goes beyond the limit of explicitly expressing the North's actual situation at the time of implied expression, and held that the representations in the judgment below are a pro rata expression under the above provision of the National Security Act. In light of the evidence adopted by the court below and the above legal principles, the above determination of the court below is just and there are no errors in the misapprehension of legal principles, such as the theory of lawsuit.

(5) The court below recognized the fact that the defendant committed each crime at the time of original adjudication with full knowledge of the fact that his act may endanger the existence, safety, and free democratic fundamental order of the Republic of Korea. Upon examining the evidence admitted by the court below according to the records, the judgment of the court below as above is just, and there is no error of law such as the theory of lawsuit.

2. We examine the Prosecutor’s grounds of appeal.

(1) As to the grounds of appeal by the Korea Civil Overseas Headquarters as an anti-government organization.

The court below held that it cannot be concluded that the pan-government headquarters was an anti-government organization under the former National Security Act on the grounds that the pan-government headquarters overseas refers to the government, and that the pan-government unification asserted by the above organization is not the unification of the Republic of Korea. In light of the records, the judgment of the court below is just and it is not erroneous in the misapprehension of the legal principles as to the state defense or anti-government organization such as the theory of lawsuit.

(2) As to the leakage of national secrets

(A) Summary of the facts charged

① At around 09:00 on March 21, 1989, the Defendant, under the direction of Nonindicted 2 and 3, who was a member of an anti-government organization, disclosed national secrets for the purpose of accomplishing its purpose by reporting the identity information of the movementmen in Korea and the trend of domestic movement rights, etc., at the first instance court near the Seocho Airport, which was ordered by Nonindicted 2 and 3, who was a member of an anti-government organization. ② On August 21, 1990, the Defendant disclosed national secrets to the Republic of Korea for the purpose of accomplishing its purpose after receiving instructions from Nonindicted 2 and 3, a member of an anti-government organization.

(B) Summary of the reasoning of the judgment below

In light of the fact that the statutory punishment for the crime of divulging national secrets under the former National Security Act is too serious and modern, it is easy to acquire information due to the development of media media. Furthermore, considering the spirit that the Constitutional Court sentenced the limited unconstitutionality to the National Security Act and the fact that the current National Security Act is different depending on whether the contents and knowledge of the state secrets are allowed only to a limited person, the term "state secrets" itself means all kinds of information which are considered necessary for the interest of the Republic of Korea, and the meaning and contents of the term "state secrets" under the National Security Act, it is reasonable to interpret the term "state secrets" as "information with substantial value as secret". It is reasonable to judge whether there is "actual value as secret" as well as in judging whether there is "material value as secret" as well as in deciding whether there is the contents of the information, but not only the relationship with the person who disclosed the information, the degree of difficulty in obtaining the information, the degree of usefulness in the process of obtaining it, and the degree of utility or general circumstances available to anti-government organizations, it should be determined carefully and carefully.

However, even if the information disclosed by the defendant is merely the defendant's opinion on the process of becoming aware of the long-term mark, etc. which is the person with the right to exercise in Korea, or on the desirable structural form of movement right or on the defendant's leading power or prospects of unification in Korea and it is confirmed that it is known and confirmed to the North Korean government, it is difficult to regard it as information data with "actual value" which is beneficial to the North Korean public organization and disadvantage to the Republic of Korea, and the above information disclosed by the defendant can be easily known by anyone because it comes to the defendant's knowledge through outside of the country or domestic press. The defendant is not in a position or position to access the above information, and thus, it is hard to secure its authenticity as it is not only because most of the contents of the above information are expressed by the defendant general, non-professional opinion or opinion about nuclear power, but also it is not worth using it by anti-government organizations. Accordingly, it is recognized that the above nuclear-related information is not information that has substantial value as confidential information.

Therefore, even if the defendant disclosed the above information, it cannot be viewed as a divulgence of national secrets under the National Security Act, so the above facts charged constitute a case where there is no proof of crime.

(C) Determination of party members

State secrets under Article 4 (1) 2 of the former National Security Act include all state secrets of each country relating to politics, economy, society, culture, etc., not limited to state secrets within the just meaning of the Republic of Korea because it is not confidential or confirmed against anti-government organizations, and includes all state secrets of each country related to politics, economy, society, culture, etc. It has already been revealed that, even if it is widely known in the Republic of Korea through newspaper articles or through books, etc., it is advantageous to North Korea, which is anti-government organizations, and if it is likely to cause disadvantages to the Republic of Korea, it shall be favorable to North Korea, which is a government secrets (see, e.g., Supreme Court Decisions 90Do646, Jun. 8, 1990; 92Do2068, Oct. 27, 1992; 93Do1951, Oct. 8, 1993).

Therefore, the court below erred by misapprehending the legal principles as to state secrets under the above Article 4 (1) 2 of the former National Security Act and thereby affecting the conclusion of the judgment, although the above information constitutes state secrets under Article 4 (1) 2 of the former National Security Act, the court below erred by misapprehending the legal principles as to state secrets under the above Article, which affected the conclusion of the judgment. Thus, the issue of this error is with merit.

3. Conclusion

However, the part of the judgment of the court below which found the guilty and the part not guilty should be sentenced to one punishment for concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the whole judgment of the court below shall be reversed and remanded. It is so decided as per Disposition

Justices Ansan-man (Presiding Justice)