Time of the crime of espionage under Article 98(1) of the Criminal Act

An act of a counter-espionage as prescribed in Article 98 (1) of the Criminal Act shall be considered as an act of a counter-espionage in the course of detection and collection of matters belonging to confidential information, books, or articles, and an act of reporting or divulging information collected by a counter-espionage to another person.

Article 2 of the former National Security Act (Law No. 549 of Jun. 10, 1960) Article 98(1) of the Criminal Act

Defendant 1 and two others

Attorney Kim Tae-tae (for the defendant 2), the Park Jong-tae (for all the defendants), Counsel for the defendant

Gwangju High Court Decision 81No510 decided November 5, 1981

The part concerning Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the Gwangju High Court.

All appeals by Defendant 2 and 3 are dismissed.

The number of days under detention after the appeal of the defendant 2 and 3 shall be included in each original sentence for 60 days.

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

(1) According to the facts stated in the judgment of the court of first instance against the above defendant 1-D, among the reasons of the judgment of the court below, the court of first instance revealed that the defendant was able to receive fear on October 14, 196, 15:00, and submitted a list of the subjects to be included, from the beginning of the Dondong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong (hereinafter referred to as "the court of first instance"). The court of first instance discovered that the defendant was subject to the second 9-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong.

However, a counter-espionage act under Article 98 (1) of the above Criminal Code refers to the detection and collection of items, books, and things belonging to the military secrets of politics, economy, society, culture, thought, etc. as well as the military affairs of our country, as well as the military affairs of our country. In a case where a person who has learned military secrets in connection with his duties discloses them to an enemy country, it constitutes Article 98 (2) of the Criminal Act, and Article 99 of the Criminal Act, in a case where a person who has learned military secrets regardless of his duties discloses military secrets to an enemy country, regardless of his duties, falls under Article 9 of the Criminal Act (see Supreme Court Decision 75Do862, May 13, 1975).

Therefore, a counter-espionage act under Article 98 (1) of the Criminal Code becomes useful when detecting and collecting matters, books, and articles belonging to confidential information, and a counter-espionage's act of detecting and collecting and divulging matters already known to others cannot be deemed as a counter-espionage act itself as a post-espionage act. According to the above facts, the first instance court's act cannot be deemed as a counter-espionage act by reporting to the North Korean typ officer or leader, etc. by entering the matters for which Defendant 1 had already discovered and collected. Thus, the court below erred by misapprehending the legal principles as to the elements of a counter-espionage act under Article 98 (1) of the Criminal Code.

If the purpose of the above one trial is not to regard only the above reporting or leakage as a counter-espionage, but also the detection and collection of the detection before North Korea as a counter-espionage, the contents and timing of the crime should be specified on the date and time, etc. of the crime.

Because the above reporting and leakage itself was about 14 years and 7 months prior to the prosecution of this case, it is necessary to clarify whether the statute of limitations has expired with respect to the act of detecting and collecting confidential information prior to the prosecution of this case.

Ultimately, among the judgment of the court below, the part concerning Defendant 1’s crime of the above espionage cannot be maintained as it is. Since the above espionage crime and other crimes are concurrent crimes, the illegality of the above espionage crime has an impact on the result of the judgment, the judgment of the court below on other grounds of appeal shall be omitted and the whole judgment of the

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

According to the evidence of the first instance court cited by the court below, there is no error of law that misleads the defendant about the violation of the rules of evidence, such as the theory of lawsuit, or the incomplete hearing, even if it is sufficiently recognized that the counter-espionage assistance in the judgment of the defendant was made in accordance with the records.

3. Defendant 2 and his defense counsel’s grounds of appeal are examined.

According to the evidence of the first instance court cited by the court below, all facts of violation of the National Security Act and violation of the public law as to the defendant are recognized, and there is no violation of the rules of evidence, such as the theory of lawsuit, incomplete deliberation, or lack of reasoning, and there is no evidence to conclude that the defendant's statement in the prosecutor's office was made in a situation where there is no voluntariness, such

4. Therefore, the part concerning Defendant 1 among the judgment below is reversed and remanded to Gwangju High Court for further proceedings consistent with this Opinion. Defendant 2 and 3’s appeal is all dismissed, and 60 days out of the detention days after the appeal of the above Defendants shall be included in the principal sentence in accordance with Article 57 of the Criminal Act. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)