Requirements for establishing a crime of divulging military secrets under Article 98(2) of the Criminal Act

The crime of divulging secrets under Article 98(2) of the Criminal Code applies to the case where military secrets known to the enemy country in the course of performing their duties are divulged to the enemy country. This applies to the case where Article 98(2) of the Criminal Code applies mutatis mutandis to the National Security Act.

Article 98 of the Criminal Act, Article 2 of the National Security Act

Defense Counsel for the defendant, Counsel for the defendant-appellant

Attorney Kang Do-young (National Election)

Daegu High Court Decision 74No87 delivered on April 25, 1974

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

The grounds of appeal No. 2 by the counsel are examined.

According to the reasoning of the judgment of the court below, the court below recognized the defendant's disclosure of military secrets for the accomplishment of the purpose of anti-government organizations as to Article 98 (2) of the National Security Act as to Article 1-1 of the criminal facts of the court below that the defendant stated that the defendant stated that the North Doppppppppppy Lee "no military is assigned to the North Dopppppy Lee.

However, according to the indictment of this case, it can be seen that the above facts were deemed as a espionage crime under the National Security Act and the indictment was instituted by applying Article 2 of the National Security Act and Article 98(1) of the Criminal Act, and that it was not a prosecution by applying Article 98(2) of the Criminal Act to the disclosure of confidential information. In addition, the crime of divulging confidential information under Article 98(2) of the Criminal Act is applied to the case where the disclosure of confidential information, which was originally known to the enemy country, is applicable to the case where it is applied mutatis mutandis under Article 98(2) of the Criminal Act (see Supreme Court Decisions 4292Do197, Jul. 10, 1959; 70Do2417, Feb. 25, 197; 71Do74, Jun. 30, 197; 197Do1714, Aug. 10, 1971).

Therefore, the court below's application of Article 2 of the National Security Act and Article 98 (2) of the Criminal Act to the above facts to the above facts is erroneous in the misunderstanding of legal principles under Article 98 (2) of the Criminal Act, which affected the conclusion of the judgment.

Therefore, the appeal on this point is justified and the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Yang Byung-ho (Presiding Justice)