Concept of a counter-espionage (whether an act of informing or divulging matters not collected or known to him/her is a counter-espionage act or not)

A. The term “espionage” under Article 98(1) of the Criminal Act refers to detecting or soliciting books or things belonging to confidential matters, such as politics, economy, society, culture, or thought, as well as the military affairs of the Republic of Korea, through secret or crym to inform the enemy of such matters. Therefore, the act of providing information or divulging matters already recruited or known to the enemy does not constitute a espionage act.

B. In the examination procedure of a witness under Article 221-2(2) of the Criminal Procedure Act, the participation of the accused and his defense counsel is not necessary, and the participation of the accused and his defense counsel is not necessary, so it cannot be deemed unlawful.

A. Article 98(1)1 of the Criminal Act (Article 4(1)1 of the National Security Act)

Supreme Court Decision 75Do862 Delivered on May 13, 1975

Defendant 1 and two others

Seoul High Court Decision 81No691 delivered on June 4, 1981

1. The part of the lower judgment against Defendant 3 is reversed, and that part of the case is remanded to the Seoul High Court.

2. Each of the appeals by Defendant 1 and Defendant 3 is dismissed.

3. The number of days under detention after the appeal by the defendant 3 shall be included in the calculation of the original sentence;

1. First, we examine Defendant 1’s violation of the National Security Act ex officio.

(1) According to the reasoning of the judgment of the court of first instance maintained by the court below, the above defendant entered the court of first instance on July 196, 196 to join the 1st century, and became a member of the Anti-government Organization, and the defendant was ordered to report his achievements in Jindo-do. ① He heard the North Korean broadcast from the direction, and came to have it in the self-government organization which made the report of progress in business in accordance with the order. ② The Jindo-do government did not have the expenses up to the 2nd Mexico and the 1st wing-do government as a member of the anti-government organization. ④ The above defendant appeared to have been present at the 1st 1st king and the 1st king-do government organization. ④ The above defendant appeared to have been present at the 2nd 1st king government organization, and the defendant was now present at the 2nd 1st king government organization to be present at the 2nd 1st king government organization, and the defendant was still present at the 2nd 1st king government.

(2) However, an act under Article 2 of the former National Security Act (amended by Act No. 3318, Dec. 31, 1980) means a espionage act under Article 98(1) of the Criminal Act for the purpose of fulfilling its purpose by a member of an anti-government organization or a person under its order. A espionage act under Article 98(1) of the Criminal Act refers to detection and collection of books or things belonging to any confidential information, such as politics, economy, society, culture, and thought, as well as military affairs of the Republic of Korea, through a secret or grave, to inform the enemy, as well as military affairs of the enemy. A person who becomes aware of a military secret in connection with his duties discloses it to an enemy country, if he discloses it, it constitutes a member under Article 98(2) of the Criminal Act, and Article 99 of the Criminal Act if he discloses it to an enemy country without connection with his duties (see Supreme Court Decision 75Do862, May 13, 1975).

Therefore, only the act of detecting and collecting confidential matters or books constitutes a espionage act as provided by Article 98(1) of the Criminal Act, and it is clear that the act of reporting or divulging matters already collected or known to the public does not constitute a espionage act. According to the facts of the first instance judgment as seen earlier, it cannot be deemed that the act of reporting to the North Dorman by entering the matters already collected or known to the public by Defendant 1 is an act of reporting to the North Dorator itself as a espionage act. In this regard, the lower court did not err by interpreting the elements of a espionage under Article 98(1) of the Criminal Act.

If the purport of the first trial does not regard the act of reporting to North Korea trupers itself as a counter-espionage, but the purpose of the first detection and collection of reported matters as a counter-espionage act, the contents and the timing of the crime should be specified as the date and time of the crime. In particular, in the case of the second facts of the above judgment, the report to North tupers itself was around 14 years prior to the prosecution of this case, and therefore, it is necessary to clarify whether the statute of limitations has expired as to the act of collecting confidential information prior to the prosecution of this case.

(3) Ultimately, the part of the judgment of the court below regarding Defendant 1 cannot be reversed on the ground of appeal by the same defendant and his defense counsel.

2. According to the evidence of the court of first instance, which was maintained by the court below with Defendant 2 and his defense counsel's grounds for appeal, the crime of espionage assistance and convenience provision in the judgment of the defendant is recognized legally, and the court of first instance does not err in the misunderstanding of facts due to violation of the rules of evidence, such as theory of lawsuit, or incomplete deliberation, even after examining the evidence preparation process which was conducted by the court of first instance based on the records, and there is no evidence supporting the record that the defendant's statement in the prosecutor's office was made in an unvoluntary situation due to the influence of the adviser received from the former investigation agency, such as theory of lawsuit, and there is no evidence supporting that the court of first instance examined the witness without the presence of the defendant and his defense counsel in the case of examination of witness under Article 221-2 (2) of the Criminal Procedure Act (the court of first instance 80 seconds1013 of the same court). However, it cannot be viewed as unlawful because the defendant and his defense counsel's participation in the examination procedure is not a requisite.

3. Defendant 3 and his defense counsel’s grounds of appeal are examined.

Comprehensively taking into account the evidence of the first instance court's reasoning, the court below's determination that the crime of offering convenience to the defendant was lawful, and the first instance court did not err by misapprehending the facts due to the violation of the rules of evidence or the incomplete hearing despite examining the evidence preparation process which was conducted by the court of first instance. The prosecutor's statement at the prosecutor's office is not acknowledged as a non-Voluntary statement like the theory of lawsuit, and it is interpreted that the newspaper article in the lawsuit about the date and time of the crime of the defendant is an interpretation that the court below rejected the defendant's statement without reliance. In light of the above evidence of

4. Therefore, the part of the judgment of the court below against Defendant 1 is reversed and remanded to the Seoul High Court for further proceedings consistent with this Opinion. The appeal by Defendants 2 and 3 is dismissed, and part of the detention days after Defendant 3’s appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Lee Sung-soo (Presiding Justice)