(영문) 교육사령부 보통군사법원 2013. 1. 18. 선고 2012고6 판결

3. Of the facts charged in the instant case, the portion of violation of the Military Secret Protection Act due to detection and collection is not guilty.

Criminal facts

1. Occupational leakage, violation of the Military Secret Protection Act;

From April 13, 2011 to June 29, 2012, the Defendant has been working for the Joint Chiefs of Staff ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Group

When a soldier handles confidential information due to his/her occupational needs, he/she has a duty of care to observe the security regulations related to the production, management, keeping, etc. of confidential information and to make maximum efforts to prevent confidential information from being leaked to the outside.

Nevertheless, on November 201, 201, the Defendant neglected to do so, and obtained a loan from Nonindicted 1 of the Presidential Decree on the Military Structure Reform Office of the Ministry of National Defense located in Yongsan-dong 3, Yongsan-gu, Seoul, from the Ministry of National Defense, and on November 21, 201, from the competent authorities of the Ministry of National Defense, and kept the documents “(name 2 omitted)” [the date of the production of documents and the production department 1 omitted) which is a military second grade secret (the date of the document, and the period of protection: the publishing office on December 31, 2020: the date of receipt on December 31, 201; the document “(name 1 omitted)” produced by copying the documents without permission from Nonindicted 2, a civilian visiting the above apartment without any protection, and did not bring about the result of the non-indicted 2’s temporary outflow of the documents at the place.

As a result, the Defendant disclosed military secrets by negligence in the course of performing duties, and at the same time disclosed military secrets possessed by a person who handles military secrets in the course of performing duties by negligence.

2. Disclosure of military appliances by occupational negligence;

Nevertheless, around May 2010, the Defendant taken the documents “(name 3 omitted)” obtained from the assistant director of the Military Power Development Headquarters of the Joint Chiefs of Staff from his/her assistant director to his/her own apartment site located in Yongsan-gu Seoul (location omitted) and the △△△○○dong-dong, and stored them in the book book of the ward without any protective device, and did not confirm the documents brought by the civilian non-indicted 2 visited the said apartment site to the police officer in March 2012, and caused the occurrence of the said documents to be leaked to the non-indicted 2 at the said date, time, and place.

On the other hand, the documents of “(name 3 omitted)” that were leaked by negligence by the Defendant constituted the same contents as “F-X- requirement performance” on the table of “to compare the performance of major aircraft” in the “(name 3 omitted) institution-61-27”, which are the same contents as “the maximum speed of “F-X- requirement performance” on the table of “to compare the performance of major aircraft,” the outer top line, the maximum armed attachment, the radar detection and tracking distance, the simultaneous tracking capacity, the telesing function part, the military third secret (name 4 omitted)” [the document production date 2 and production department 2 omitted), the protection period 258-137 through 139], which are the main contents of “Operation performance (F-X) performance” of the second generation Air Force, which are the main contents of “F-X” of our military forces, and thus, constitutes a strategic military secret that is not known to the general public.

Accordingly, the defendant revealed military secrets due to occupational negligence.

Summary of Evidence

For each fact in the ruling:

Facts No. 1 of the ruling,

1. Any statement made by the defendant in compliance with this Act;

1. Each statement prepared by the military prosecutor which conforms to the interrogation protocol of defendants prepared by the military prosecutor;

1. Statement made by the military prosecutor on Nonindicted 2's statement, which is consistent with this;

1. Investigative report prepared by a military judicial police officer (the examination of whether the military secrets are classified as "(name 1 omitted)", the statement fit for the examination;

1. The description that conforms to the facts constituting the offense described in the judgment among "(No. 1 omitted)" (No. 1 omitted) seized and the presence of such description;

Comprehensively,

The facts of the Decision 2 are:

1. Any statement made by the defendant in compliance with this Act;

1. Each statement prepared by the military prosecutor which conforms to the interrogation protocol of defendants prepared by the military prosecutor;

1. Statement made by the military prosecutor on Nonindicted 2's statement, which is consistent with this;

1. In the investigation report prepared by a military judicial police officer (as to "4. next generation aircraft and F-35. F-22", the statement fit for the examination

1. The description that conforms to the facts constituting the offense described in the judgment among "(No. 3 omitted)" (No. 2) seized and the presence of such description;

Comprehensively,

Since each of them can be accepted,

All facts in the ruling are proven.

Application of Statutes

1. Article applicable to criminal facts;

Articles 14 and 13(1) of the Military Secret Protection Act (the occupation of the divulgence of military secrets by negligence) and Article 80(2) and (1) of the Military Criminal Act (the occupation of the divulgence of military secrets by negligence in the course of performing duties)

2. Competition;

Articles 40 and 50 of the Criminal Act (Article 40 and 50 (Article 50 of the Criminal Act 1 omitted) : The crime of divulging military through the divulgence of documents; the crime of divulging military through occupational negligence due to the divulgence of documents; and the crime of divulging military through occupational negligence with heavy punishment

3. Selection of punishment;

Selection of each fine

4. Aggravation of concurrent crimes;

Articles 37 (former part of Article 37, Articles 38 (1) 2, and 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed for the crime of divulging military discipline due to the divulgence of documents with heavy criminal history 1 omitted]

5. Articles 70 and 69 (2) of the Criminal Act to attract a workhouse.

Reasons for sentencing

The military can be said to be an indispensable existence in order to protect the nation’s existence and security, and the lives and rights of the people. Considering that the form of modern dispute is in the form of a total force that covers all aspects of politics, economy, etc., the value of information in the military needs to be emphasized further. Furthermore, as the Defendant handled core information of the State and the military while working in the field of operations in the field of operations, compliance with the security regulations and the maintenance of confidentiality should be emphasized. Nevertheless, even if the Defendant carried out military secrets as a result, and released military secrets to civilians, thereby causing damage to the State and the military. Although there is no damage revealed at present in the State and the military, it cannot be ruled out that there is a possibility of damage to the State and the military in the future. Therefore, even if there is no damage revealed at present in the State and the military, it is difficult to strictly punish the Defendant. However, if the Defendant committed the instant crime in the course of performing duties other than the purpose, it is unreasonable to view the criminal facts in paragraph (2) that the Defendant is fully responsible for the State and the military, and the Defendant did not have any criminal conviction.

Judgment on defense counsel and defendant's argument

I would like to examine this issue, since the defense counsel and the defendant alleged that the document "(name 3 omitted)" as stated in the criminal facts paragraph (2) of the judgment does not constitute a crime because it does not have a military secrecy.

The military secrets referred to in Article 80 of the Military Criminal Act include not only the matters stipulated as the military secrets under the statutes, but also the matters which are objectively and objectively used as the military necessity and are not known from the general public (see, e.g., Supreme Court Decisions 90Do230, Aug. 28, 1990; 99Do4022, Jan. 28, 2000). However, whether there is considerable benefit to the outside not being known should be determined by comprehensively taking into account the process and process of preparation of the data, specific contents of the divulged data, possibility of causing harm to military purposes if the data is known to the outside, the status of the data being used in practice, the degree of disclosure to the outside, the relationship between the citizen's right to know, etc.

The defense counsel and the Defendant asserted that the instant documents were written in the ordinary public as an ordinary letter without a confidential indication, and that they had already lost their value as a confidential fact at the time the documents were leaked.

However, as shown above, military secrets include not only matters that were classified as secrets according to military needs but also matters that have considerable benefits from an objective point of view, which are not known to the general public, and as long as such military secrets meet the nature of military secrets, they cannot be viewed as not military secrets solely on the ground that they were prepared without military secrets.

In addition, according to the fact that the source or performance part of aircraft, such as F-35, F-22, and Lagazter, etc., has been disclosed to the general public through several medias, a set set off, a setnet, and a blogs, etc., but the required performance part, which is expressed in specific figures, such as the maximum speed for the selection of a model for the F-X business set up in the Gun included in the “(Name 3 omitted)” of this case, appears not to have been disclosed to the media, etc. [only the comparison level of operational performance, etc., such as operational performance, which was disclosed to the public in the thesis, etc. for which the defense counsel and the defendant asserted, can only be described as abstract (no specific criteria to determine conformity is presented) and it does not have any specific degree as included in the document of this case as included in the document of this case];

In light of the contents of the investigation report (as of “4th generation aircraft and F-35, F-22”) prepared by the military judicial police officer, and the contents of “(name 3 omitted)” (No. 2), seized “(as of No. 3 omitted)” (as of the date of production of documents and the production department 2 omitted) and the content of the documents included in the criminal facts of this case are the same as that of the military class III secret (as of December 31, 2020), (as of December 31, 2020), and (as of December 31, 2020, some of the F-X operation performance related to the whole operation performance of the F-X project should be included, and thus, it is predicted that the F-X project still is being implemented by the Republic of Korea and expected that the budget of several trillion won will be used in the process of conclusion and negotiation of the contract. Accordingly, the Defendant’s defense counsel’s assertion that the above documents included in the criminal facts of this case should not be accepted.

Parts of innocence

Of the facts charged of this case:

1. Violation of the Military Secret Protection Act;

From April 13, 2011 to June 29, 2012, the Defendant was working for the Joint Chiefs of Staff ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

(a)the detection and collection of “(name 5 omitted)”;

On October 11, 2011, the Defendant, at the office of ○○○○○○○○○○○○○ Group, located in Yongsan-gu Seoul Metropolitan Government, and Joint Chiefs of Staff (hereinafter “Joint Chiefs of Staff”), connected the KJCCS (Joint Command Control System) using one’s PC for the purpose of using it as data for the Joint Chiefs of Staff, and printed out “(Name 6 omitted).”

Although the Defendant should have destroyed the above output on the same day in accordance with the provisions after using it as meeting material, the Defendant did not destroy it for personal business reference, and kept it voluntarily in the office, and carried it out to its own apartment located in the same Gu (location omitted) as the end of February 2012, 2012 in preparation for security audits.

The term "(name 6 omitted)" printed by the defendant is a military secret of class III of the military (name 5 omitted), which includes the contents such as the "(name 3 omitted)" (name 5 omitted), "(name 3 omitted)" (name 3 omitted in the date of production of documents), the protection period of December 31, 2013; preservation period of 3 years) and is likely to cause significant danger to national security if leaked.

(b) detection and collection of “(name 2 omitted)”;

Around November 201, the Defendant borrowed documents from the Ministry of National Defense (Ministry of National Defense) located in Yongsan-gu, Yongsan-gu, Seoul (Ministry of National Defense) and from Non-Indicted 1, and from November 21, 201, the Defendant carried out the documents to its own apartment in preparation for a security audit around February 201, 201, while the Defendant returned the original documents to him/her, and kept the copies thereof in the office of Yongsan-gu, Yongsan-gu, Seoul. (Ministry of National Defense) on or around December 31, 2012.

The documents produced by the defendant, "(name 1 omitted)" and "(name 2 omitted)" include the military system change process of our military forces, future national development direction, the appropriate level of military force of the Korean military forces in 2025, the concept of military force size, the formulation of a plan for the phased construction of target power and the evaluation of suitability for the phased construction of force, etc., and thus, are classified as military secrets that are likely to cause significant danger to national security if leaked.

On November 2011, the Defendant borrowed “(name 7 omitted)” (name 7 omitted) which is a military second grade secret (name 4 and production department 3 omitted), from Nonindicted 1’s above-mentioned Nonindicted 1’s loan, and 10 years of preservation period, using a duplicate machine at the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office

Documents produced by the defendant include contents such as analysis of the future security environment for planning long-term military rescue, evaluation of the surrounding military forces, formulation of response strategies, establishment of the concept of development of military power, and design of military structures, which are likely to seriously risk national security if leaked.

(d)the detection and collection of “(name 8 omitted)”;

Around November 2011, the Defendant borrowed the instant Nonindicted Party 1’s “(name 9 omitted)” book from the said Nonindicted Party 1, and then copied it at the said ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office, returned the original, and carried it out

Documents reproduced by the defendant are classified as military secrets of Class II military secrets (No. 8 omitted) (No. 5 of the date of production of documents, no. 3 of the production department of documents, protection period of December 31, 2012, no. 10 years of preservation period), which include the contents of the guidelines for the determination of the situation of surrounding countries and the Korean Peninsula in relation to long-term military power development, establishment of future vision, establishment of threats, post-determination, improvement of the structure of each military unit, etc. and thus are likely to cause serious danger to national security if leaked.

(e)the detection and collection of “(name 10 omitted)”;

Around November 2011, the Defendant borrowed the instant Nonindicted Party 1’s “(name 11 omitted)” book from the said Nonindicted Party 1, and then copied it at the said ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and returned the original, and carried it out to its own apartment in preparation

Documents reproduced by the defendant are classified as military secrets of Class II military (10 omitted), which include "(6)" (2) (2) the date of production and production of documents, and the protection period (2 omitted), and (31 December 2012), and are likely to cause substantial danger to national security if disclosed, as the contents of the demand for each sector required by our military according to the upper command structure and strategic environment assessment are included therein.

(f) detection and collection of “(name 12 omitted)”;

On November 2011, the Defendant borrowed “(name 12 omitted)” (name 7 of military second grade secret (name 12 omitted) from Nonindicted Party 1 (name 7 of document production date and production department 3 omitted), protection period permanent, and permanent preservation period) from the above office of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant include the overall contents of the development trends and plans of the upper command structure in the military structure of our military forces, and thus, are classified as military secrets that are likely to cause significant danger to national security if leaked.

(g)the detection and collection of “(name 13 omitted)”;

On November 2011, the Defendant borrowed “(name 13 omitted)” ((name 8 and production department 4 omitted), which is a military second grade secret (name 13 omitted) from Nonindicted 1, the Defendant used a duplicate machine at the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 2

Documents produced by the defendant are classified as military secrets that are likely to cause significant danger to national security if leaked because the contents of the command structure of our military, organization and distribution of functions in accordance with the command structure, military structure and military system including the upper command structure, research on military system, and future vision, etc. are included.

(h)the detection and collection of “(name 14 omitted)”;

On November 201, the Defendant borrowed “(name 14 omitted)” (name 9 and production department 5 omitted), which is a military II secret (name 14 omitted) from Nonindicted 1’s above Nonindicted 1’s above office (name 9 and production department 5 omitted), from December 31, 2003; preservation period of five years, preservation period of five years, and transfer to the Ministry of National Defense on June 2005). The Defendant returned the copy using a reproduction machine at the above office of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant include contents such as efficient military structure reorganization direction, transparent and target-oriented defense force improvement direction, reasonable personnel management direction, development of educational system, improvement of fair military service system, innovation of national defense management, etc. and thus are likely to seriously risk national security if leaked.

(i) detection and collection of “(name 15 omitted)”;

Around November 2011, the Defendant: (a) obtained from Nonindicted 1, the documents “(name 16 omitted)” using Nonindicted 1’s office PC; and (b) carried out the printed parts to its own apartment in preparation for a security audit around February 2012 while keeping the printed parts in its office.

Documents printed by the defendant are parts of the "(name 15 omitted)", which is a military second grade secret (name 10 of the date of production of documents, 6 omitted of the production department, 10 years of the protection period, 10 years of the preservation period), which is a military secret (name 17 omitted) and is likely to cause serious danger to national security if leaked because the contents of the past basic plan for national defense reform promoted in order to derive the desirable direction for the national defense reform plan to be promoted by our military in the future.

(j)the detection and collection of “(name 18 omitted)”;

On November 201, 201, the Defendant had access to KJCCS (Joint Command Control System) using his office PC in order to prepare preparation materials for the National Defense Reform Basic Plan, which was in the Military Structure Development Department of the Joint Chiefs of Staff, and had access to the KJCCS (Joint Command Control System), and used “(Name 19 omitted) as reference materials.”

Although the Defendant used the above documents to destroy them or recorded and stored them in a separate letter, the Defendant arbitrarily stored them in the office without any separate measure to use them for personal business reference, and carried them out to his apartment around February 2012 in preparation for a security audit.

Documents printed by the defendant are military secrets of Class II (20 omitted), which include documents attached to "(11 and production department 7 omitted)" (the date of production of documents), protection period, December 31, 2013, the preservation period of 3 years) and are likely to cause serious danger to national security if leaked.

(k) detection and collection of “(name 21 omitted)”;

On November 201, the Defendant used Nonindicted 3’s office PC in order to use the documents “(Name 22 omitted)” from Nonindicted 3, mid-term in charge of the Union Practice Program of the Joint Chiefs of Staff, which was in the military structure development department of the Joint Chiefs of Staff, for the purpose of preparing materials to prepare a review conference on the basic plan for national defense reform, which was conducted in the Department of Military Structure Development of the Joint Chiefs of Staff, to use Nonindicted 3’s office PC, and carried out the printed copies to its own apartment in preparation for the security audit on or after February 2012 while arbitrarily

Documents printed by the defendant include documents attached to the "(name 21 omitted)" (the date of production of documents, the protection period of December 31, 2012, the preservation period of three years), which is a military second grade secret (name 12 and the production department omitted), and are military secrets that are likely to cause significant danger to national security if leaked.

(l) detection and collection of “(name 23 omitted)”;

On November 201, 201, the Defendant, at the time of the conference on the upper report of the basic plan for national defense reform (name 23 omitted), distributed documents to the Joint Chiefs of Staff (name 23 omitted) as data at the time of the review on the basic plan for national defense reform, was destroyed after the conclusion of the conference, and was arbitrarily stored in the office and carried out the documents to his apartment around February 201, in preparation for the security audit.

Documents collected by the defendant are the same documents before the final approval of the "(No. 23 omitted)" (No. 13 of the date of production of documents, no. 3 of the production department), protection period, and no. 3 years of preservation period) which are military secrets of Class II military, and are classified as military secrets that are likely to cause significant danger to national security if leaked, because they include the contents of the military structure reform plan, military history, military unit, military unit, and plan to implement military structure, including the upper command structure of our military forces.

(m)the detection and collection of “(name 24 omitted)”;

On December 2, 2011, the Defendant borrowed “(name 24 omitted)” (name 14 and production department 3 omitted), which is a military second grade secret in the Joint Chiefs of Staff (name 24 omitted), from the office of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”).

Documents produced by the defendant include independent strategies for the establishment of independent national defense preparedness, tactical, development of doctrine, power expansion for the display of integrated military power, improvement of military structure, transfer of each armed force, and detailed structure of each military unit, and thus, are likely to seriously pose a threat to national security if leaked.

(n) detection and collection of “(name 25 omitted)”;

On December 2, 2011, the Defendant borrowed “(name 25 omitted)” (name 15 of the date of document production, term of protection, permanent period, and permanent period of preservation) confidential information of Class II military affairs in the Joint Chiefs of Staff (name 25 omitted) at the archives of the Joint Chiefs of Staff (name 15 of the document production date, 3 omitted), and then copied the original by using a reproduction machine at the said offices of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant are military secrets that are likely to seriously risk national security if leaked, because they include contents such as the establishment of a separate military strategy, establishment of a target-oriented military force, improvement of military structure for the display of integrated military power, etc. in line with the Korean conditions for the establishment of independent military preparedness.

(o) detection and collection of “(name 26 omitted)”;

On December 2, 2011, the Defendant borrowed “(name 26 omitted)” (name 16 of military second grade secret (name 26 omitted) at the Joint Chiefs of Staff (name 16, production department3 omitted), protection period permanent, and permanent preservation period) at the office of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant include contents such as the establishment of an independent military strategy for the establishment of independent national defense and the establishment of military force for the realization of such a plan, the improvement of military structure of the upper and lower parts, etc., and thus, are classified as military secrets that are likely to seriously risk national security if leaked.

(p) detection and collection of “(name 27 omitted)”;

On December 12, 2011, the Defendant borrowed “(name 27 omitted)” (name 17 of the Joint Chiefs of Staff and No. 3 omitted) which is a military II secret (name 27 omitted) from Nonindicted 4 of the Enforcement Decree of the Joint Chiefs of Staff (name 17 of the date of production of documents, term of protection, December 31, 2012) from the office of the said ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant include the contents of the policy direction of the future national defense in the 21st century, such as the adjustment of military administration, military order sector, and the establishment and direction of the national defense preparedness in preparation for the overall maintenance and unification of our military forces, including the integrated issue, following the changes in the security environment, and thus, constitutes military secrets that are likely to cause significant danger to national security if leaked.

(q) detection and collection of “(name 28 omitted)”;

On December 12, 2011, the Defendant borrowed “(name 28 omitted)” (the date of production of documents and the permanent preservation period of the production department) from the office of the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’

Documents produced by the defendant include the overall contents of the direction of the development of long-term national defense attitudes for the establishment of independent national defense attitudes, such as the development of the military structure and administration of the military, the establishment of an independent military strategy, the improvement of the military structure, and the construction of public military force, and thus, are classified as military secrets that are likely to cause significant risks to national security if leaked.

(r) detection and collection of “(name 29 omitted)”;

On December 12, 2011, the Defendant borrowed “(name 29 omitted)” (name 19 of the Joint Chiefs of Staff, term of protection, permanent period of protection, and permanent period of preservation) which is a military II secret (name 29 omitted) from Nonindicted 4 of the Decree on the Military Structure Development of the Joint Chiefs of Staff and the subordinate Decree, and then returned the original by using a reproduction machine at the office of the said ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant include contents such as demands for military development, which correspond to the 21st century's establishment of self-defense attitude and rapid change of times, and thus, are classified as military secrets that may cause significant danger to national security if leaked.

(s) detection and collection of “(name 30 omitted)”;

On December 13, 2011, the Defendant borrowed “(name 30 omitted)” ((name 20 of the date of document production and production department 9 omitted), which is a military second grade secret (name 30 omitted), at the Data Secretariat of the Joint Chiefs of Staff) (20 years of preservation period, December 31, 2005; preservation period of 20 years) at the above office of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Documents produced by the defendant are classified as military secrets that are likely to seriously risk national security if disclosed, including the content of the transition to a technology-intensive military structure in preparation for the unification of the Korean Peninsula, the reorganization of national defense organization, the guidelines for the maintenance of military force at the time of the integration of South and North Korea, and the mid- to long-term complementary direction of

(t) detection and collection of “(name 31 omitted)”;

In the joint operations of the Joint Chiefs of Staff on February 2012, 2012, the Defendant borrowed “(name 31 omitted)” ((name 21 and production department 10 omitted), “(name 21 and production department 10 omitted)” (the date of document production, re-explosion of protection period, permanent preservation period) at the office of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 31 omitted)

Documents produced by the defendant include the changes in command related to the creation of the Seobuk Island Defense Headquarters, the nature and mutual relationship of the documents related to the grant of national guidance, and the operation execution system and direction relationship according to the enemy launch, and thus, the documents are classified as military secrets that are likely to cause significant danger to national security if leaked.

(u) detection and collection of “(name 33 omitted)”;

On February 2, 2012, the Defendant printed out the documents “(name 33 omitted)” from the Joint Chiefs of Staff to the PC, and used the documents for the executive officers “(name 32 omitted)” and the documents for the education of “(name 32 omitted)” in his/her office, and carried out the printed copies to his/her apartment in preparation for a security audit on or after February 2012 while arbitrarily kept them in his/her office without any separate measures.

Documents collected by the defendant are military secrets of grade II (33 omitted), "(22 and production department 11 omitted)" (the date of production of documents), protection period of which is 1 December 31, 2013, preservation period of which is 1 year) and are classified as military secrets that are likely to cause serious danger to national security if leaked because the contents concerning the granting and extension of the authority to issue warning alert orders for prompt and accurate dissemination of the situation, such as red diversity and thermal shotouts, in relation to the defense of the Northwest Island, include the contents regarding the prompt and accurate issuance and extension of the authority to issue warning orders.

(v) detection and collection of “(name 34 omitted)”;

On December 2, 2011, the Defendant: (a) obtained six documents, such as “(name 35 omitted)” and “(name 36 omitted)” from Nonindicted 1 of the Presidential Decree on the Military Structure Reform Office of the Ministry of National Defense from Nonindicted 1; and (b) obtained output using Nonindicted 1’s office PC; and (c) carried out the output in his/her office at his/her own discretion in preparation for a security audit on or after February 2012 while the output was kept in his/her office.

Documents printed by the defendant are classified as military secrets of Class III (34 omitted), which include various types of military systems, the organization and distribution of military units and military force, and the organization and distribution of functions of our military units, and the current status of the organization and expulsion of military units, and are likely to cause considerable risk to national security if leaked.

As a result, the defendant was found to have discovered and collected each military secret in a way that does not follow legitimate procedures.

Judgment

Article 11 of the Military Secret Protection Act provides that "a person who detects or collects military secrets in a way that does not follow legitimate procedures shall be punished"; however, it is a problem whether a person who handles military secrets collects and removes data in violation of security regulations due to the necessity of his/her business.

Article 12(1) of the Military Secret Protection Act provides that "a person who detects or collects a military secret shall be punished by imprisonment for a fixed term of not less than one year," and Article 12(2) provides that "a person who knows or possesses a military secret by chance shall be punished by imprisonment for not more than five years or by a fine not exceeding seven million won, if the person who knows or divulges it to another person even though he/she is the military secret." Article 13(1) provides that "a person who handles or has handled the military secret in the course of his/her duty divulges it to another person who becomes aware of or has occupied the military secret in the course of his/her duty, shall be punished by imprisonment for a limited term of not less than three years." Article 13(2) provides that "a person who divulges or has become aware of the military secret in the course of duty shall be punished by imprisonment for not more than seven years if he/she divulges it to another person other than the person under paragraph (1) (Article 13)." The Military Secret Protection Act provides that a person who divulges or handles it by negligence.

If a person who handles military secrets in violation of Article 11 of the Military Secret Protection Act collects data necessary for his/her duties in violation of security regulations, it seems reasonable to apply Article 12(1)(1)(1) of the Military Secret Protection Act to the case of divulging it to another person, and it would result in unreasonable results when compared to Article 13(1)(3) of the Military Secret Protection Act, which applies to the case where a person who handles military secrets collects data necessary for his/her duties in compliance with the security regulations and divulges them while collecting data necessary for his/her duties.

In addition, Article 10 (1) of the Military Secret Protection Act provides a separate provision to punish a person who handles military secrets fails to comply with measures to protect military secrets under the Military Secret Protection Act.

In a comprehensive interpretation of various provisions of the Military Secret Protection Act, it would be reasonable to interpret that a person who searches for and collects military secrets without due process under Article 11 of the Military Secret Protection Act does not include a case where a person who handles military secrets violates the procedure in the course of collecting data as required for his/her business (excluding a case where it may constitute a violation of Article 10 of the Military Secret Protection Act).

In the case of each of the facts charged in this case, comprehensively taking account of the defendant's statement made in this court and the statement written by the prosecutor of each interrogation protocol against the defendant prepared by the military prosecutor, each of the documents included in the facts charged in this case was stored by copying, printing, etc. according to business necessity during the process of handling the defendant's duties, which was brought to the defendant's office to avoid the security audit and to refer again to the duties thereafter, and it was brought to the defendant's office to be used again, and there is no special circumstance to punish the defendant by applying Article 11 of the Military Secret Protection Act, which does not constitute a violation of Article 11

Therefore, since each of the facts charged in this case constitutes a case that does not constitute a crime, each of the facts charged in this case is pronounced not guilty under the former part of Article 380

It is so decided as per Disposition for the above reasons.

The Minister of Justice, the Minister of Justice, the Minister of Justice, the Minister of Justice, the Minister of Justice, the Minister of Justice, the Minister of Justice, and the President.

본문참조판례

-대법원 1990. 8. 28. 선고 90도230 판결

-대법원 2000. 1. 28. 선고 99도4022 판결

본문참조조문