[1] The meaning and meaning of “location or collection in a way other than by the lawful procedure” under Article 11 of the Military Secret Protection Act, and the case where a person handling military secrets merely did not perform a duty to take protective measures in the course of handling military secrets, or changes the status of custody, such as moving the place of storage already known or occupied, constitutes such a case (negative) / Whether the act of detecting and collecting military secrets should also be proved to the effect that there was a risk of undermining national security by means of the detection and collection as above in order to establish a violation of Article 11 of the Military Secret Protection Act (negative)

[2] The case holding that in case where the defendant who handles the military secrets in the course of performing his duties was indicted for violating the Military Secret Protection Act on the ground that he carried out the military secrets to the office without destroying printed or copy, etc. to use the military secrets as reference material by printing out or borrowing them as a source for the purpose of his duties, returned the original, or received at the meeting, and stored them in the office without destroying the printed or copy, etc. to continuously use them for the purpose of reference, and was indicted for violation of the Military Secret Protection Act on the ground that he carried them out to his apartment in preparation for the security audit, and thereby discovered and collected the military secrets by means of no legitimate procedure

[1] In light of the language and text of detection and collection, systematic and logical relationship between the provisions of punishment different from Article 11 of the Military Secret Protection Act and the principle of constitutional interpretation, etc., the expression “location or collection in a manner that is not in conformity with the due process of law” under Article 11 of the Military Secret Protection Act refers to finding out the contents of the act or obtaining possession of the military secrets by finding out the person who is not authorized to access the military secrets without due access to the military secrets. A person who is authorized to detect, collect, or handle the military secrets, regardless of his/her duties, may be found as such. On the other hand, it is difficult to view that a person who handles the military secrets in the course of handling the military secrets as a case where the person who is authorized to detect, collect, or handle the military secrets, simply fails to perform protective measures, or moves the place of storage of the military secrets already known or occupied, etc., regardless of what falls under Article 10 of the Military Secret Protection Act, etc.

On the other hand, a crime of violation of Article 11 of the Military Secret Protection Act does not require proof that the above detection and collection occurred, and that there was a risk of endangering national security.

[2] In a case where the defendant who handles the military secrets in the course of performing his/her duties was indicted for violating the Military Secret Protection Act on the ground that he/she did not destroy printed or copy, etc. to use the military secrets necessary for reference as reference in the course of performing his/her duties by printing out or borrowing them as a printer for the purpose of his/her duties, returned the original, or received at the meeting without destroying the printed or copy, etc. in order to continuously use them for reference, and he/she was indicted for violation of the Military Secret Protection Act on the ground that he/she removed from his/her apartment in preparation for the security audit, and thereby discovered and collected the military secrets by means of no legitimate procedure, the case holding that the act of the defendant continued to store or taken out

[1] Articles 5(1), 10, and 11 of the Military Secret Protection Act / [2] Articles 5(1), 10(1), and 11 of the Military Secret Protection Act; Article 325 of the Criminal Procedure Act

Defendant

Military Prosecutor

Attorney Lee Dong-chul

High Court for Armed Forces Decision 2013No29 Decided April 30, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. Summary and key issues of the facts charged

A. The gist of the facts charged at the Supreme Court is as follows. The Defendant, while carrying out his duties, carried out the military secrets to his apartment in preparation for the security audit without destroying printed materials or copies, etc. in order to use the military secrets as reference materials for business convenience by printing out or borrowing them as a source of money, return the original, or receive them at the meeting, and keep them in the office without destroying the printed materials or copies, etc. to continuously use them for business reference. Accordingly, the Defendant discovered and collected the military secrets by means not following legitimate procedures

B. The first instance court and the lower court determined that a person who handles military secrets was not guilty of the Defendant’s act. The first instance court: (a) collected data on the grounds that the person who handles military secrets in the course of performing his/her duties and did not constitute “a person who searches and collects military secrets by means other than lawful procedures” under Article 11 of the Military Secret Protection Act; (b) however, the violation of the procedures stipulated in the security regulations is included in “the methods other than lawful procedures” under Article 11 of the Military Secret Protection Act; (c) however, “location and collection” under Article 11 of the Military Secret Protection Act means that the detection or collection itself may pose a risk of undermining national security; and (d) there is insufficient proof that the Defendant’s act constitutes such a case.

C. The key issue of the instant case is whether the Defendant’s act constitutes a case where “location and collection of military secrets by means of not following the lawful procedure” as stipulated in Article 11 of the Military Secret Protection Act.

2. Interpretation of Article 11 of the Military Secret Protection Act

A. The principle of no punishment without the law requires that crimes and punishments be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, penal provisions should be strictly interpreted, and interpreting them in a manner unfavorable to the defendant beyond the possible meaning of the language and text is not allowed in accordance with prohibition of extended interpretation of the principle of no punishment without the law (see, e.g., Supreme Court Decision 2015Do17847, Mar. 10, 201

B. Article 11 of the Military Secret Protection Act provides, “Any person who searches or collects military secrets in a manner that does not follow legitimate procedures shall be punished by imprisonment with prison labor for not more than ten years.” However, the Military Secret Protection Act does not provide any provision regarding the meaning and scope of “location”, “collection” and “legal procedures”, and does not expressly delegate the contents thereof to subordinate statutes. Generally, the term “location” refers to the act of finding out any fact or object that has not been disclosed,” and “collection” refers to the act of finding and gathering various things or materials. In other words, according to the meaning of the text, detection and collection is the act of finding out or obtaining possession thereof, and it is difficult to view it as a matter of course including the act of keeping, managing, classifying, or moving the items already acquired.

C. The Military Secret Protection Act imposes an obligation on a person who handles military secrets as follows to take appropriate protective measures for the military secrets. Military secrets must be designated at the lowest level of protective measures, depending on their content and value (Article 4(1)). A person who handles military secrets shall indicate or notify that military secrets are military secrets designated pursuant to Article 4: Provided, That in cases where indication or notification is impossible or inappropriate, measures necessary for the protection of military secrets shall be taken, such as preventing access to the military secrets or concealing the place of the military secrets (Article 5(1)). The provision of Article 5(3) of the Military Secret Protection Act provides that “Any person who handles military secrets shall be punished by imprisonment with prison labor for not more than 5 years, or by imprisonment with prison labor for not more than 10 years, as prescribed in Article 5(3) of the Enforcement Decree of the Military Secret Protection Act.”

If, even if a person who handles military secrets violates the above duty to take protective measures, it constitutes “location or collection in a manner that is not in accordance with due process” as stipulated in Article 11 of the Military Secret Protection Act, even if a person who is authorized to handle military secrets violates the duty to take protective measures in the course of viewing and copying military secrets according to the need for his/her duties, it constitutes detection and collection of military secrets under Article 11 of the Military Secret Protection Act. Ultimately, according to such interpretation, it is unreasonable to separately place Article 10 of the Military Secret Protection Act.

In addition, the Military Secret Protection Act, amended by Act No. 13503, Sept. 1, 2015, newly established Article 11-2 (the possession of a non-authorized person’s military secret) and stipulates, “If a person who handles a military secret occupies the military secret even after the license for handling it was cancelled, he/she shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won.” The purpose of the provision revealed in legislative data is to punish a person who handles a military secret, as long as he/she does not divulge it to another person at the time of discharge or retirement. The purpose of the provision, which is to punish a person who illegally ships or occupies a military secret without permission at the time of discharge or retirement, constitutes a violation of Article 11 of the Act that is more severe than the statutory punishment for a person who handles a military secret in the course of viewing or copying the military secret or handling it according to the need for his/her duty to take protective measures, violates the proportionality principle and the proportionality system of punishment.

D. In light of the above interpretation according to the language and text of detection and collection, systematic and logical relationship of punishment different from that of Article 11 of the Military Secret Protection Act, constitutional interpretation principle, etc., the expression “location or collection in a manner that does not follow due process of law” under Article 11 of the Military Secret Protection Act means finding out the person subject to detection and collection without due authority or obtaining possession of the person. A person who is not authorized to access military secrets but is authorized to detect, collect, or handle the military secrets can be found as such. On the other hand, it is difficult to view that a person who handles the military secrets in the course of handling the military secrets merely did not perform the duty to take protective measures, or changes the storage status by moving the place of storage already known or occupied, etc., regardless of what falls under Article 10 of the Military Secret Protection Act, etc.

On the other hand, a crime of violation of Article 11 of the Military Secret Protection Act does not require proof that the above detection and collection occurred, and that there was a risk of endangering national security.

3. Determination on the instant case

Examining the instant case in light of the aforementioned legal principles, the Defendant’s act of continuously storing or removing printed materials or copies according to the need for business operations may constitute a violation of the duty to take protective measures against military secrets, but it is difficult to view that it constitutes detection and collection under Article 11 of the Military Secret Protection Act.

The reasoning of the judgment of the court below is partly inappropriate, but the conclusion of the court below that the defendant's act does not constitute a case of detection and collection in a manner that does not follow legitimate procedures as provided in Article 11 of the Military Secret Protection Act is correct. The judgment below did not err by misapprehending the legal principles on a violation of Article 11 of the Military Secret Protection Act

On the other hand, the prosecutor appealed the guilty portion of the judgment below, but did not state the grounds of appeal in the petition of appeal or appellate brief.

4. Conclusion

The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)