[1] The meaning and legal interest of "official secrets" in the crime of disclosure of official secrets

[2] In a case where a public official, who was in charge of the custody and public sale of delinquent vehicles at the Gu office, was indicted for divulgence of official secrets by finding out information about the ownership of a vehicle belonging to the National Police Agency, which was used for the locked duty of the police in the vicinity of the crime scene by using the tea inquiry system upon Gap's request, and informing Gap of the information, the case holding that the judgment below which found the defendant guilty on the ground that the above information does not constitute "official secrets pursuant to the Act and subordinate statutes" in the crime of divulgence of official secrets

[1] Article 127 of the Criminal Code provides that a person who is or was a public official shall divulge a secret in the course of performing his/her duties pursuant to the law. Article 127 of the same Code provides that the term "official secrets pursuant to the law" shall not be necessarily defined as confidential under the law or specified as confidential, but shall include matters of considerable interest in which the government, a public office, or a citizen is not known from an objective and general point of view as well as matters of which the public is not known from an objective and general point of view, but shall be recognized as worth protecting them. This crime is not to protect the confidentiality itself, but to protect the interests of a public official, which are dangerous by infringement of the duty of confidentiality, namely, the function of a country

[2] In a case where the Defendant, who was a public official of the Gu office, was indicted for divulgence of official secrets by finding out information about the ownership of the vehicle belonging to the National Police Agency, which was used for the locked service of the police in the vicinity of the manufacturing site of B using the tea inquiry system upon Gap’s request, by informing Gap of the information about the ownership of the vehicle belonging to the National Police Agency, which was used for the locked service of the police, the case holding that, unlike the registration of real estate available for perusal, it cannot be viewed that there was an unlawful act of disclosure or disclosure of information concerning the owner of the vehicle under the former Automobile Management Act (amended by Act No. 9449 of Feb. 6, 2009), Articles 10 and 12 of the former Automobile Registration Rules (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 239 of Apr. 7, 2010), unlike the registration of real estate available for perusal, it cannot be viewed that the information about the owner of the vehicle constitutes an unlawful disclosure or disclosure of information under the National Police Agency.

[1] Article 127 of the Criminal Act / [2] Article 127 of the Criminal Act, Article 7 (4) of the former Automobile Management Act (amended by Act No. 9449 of Feb. 6, 2009), Articles 10 and 12 of the former Rules on Automobile Registration (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 239 of Apr. 7, 2010)

[1] Supreme Court Decision 2002Do7339 Decided December 26, 2003 (Gong2004Sang, 291), Supreme Court Decision 2004Do5561 Decided June 14, 2007 (Gong2007Ha, 1108), Supreme Court Decision 2009Do2669 Decided June 11, 2009

Defendant

Defendant

Cheongju District Court Decision 2010No640 decided October 14, 2010

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined.

Article 127 of the Criminal Act provides that a person who is or was a public official shall divulge a secret in the course of performing his/her duties pursuant to the Acts and subordinate statutes. Article 127 of the same Act provides that the term “official secrets pursuant to the Acts and subordinate statutes” shall not necessarily be limited to the matters specified as confidential under the Acts and subordinate statutes or as classified as confidential, but shall include not only the matters classified as confidential depending on political, military, diplomatic, economic, and social needs, but also the matters of considerable benefits that the government, public offices, or citizens are not known from an objective and general point of view. However, it should be recognized that the crime is worth protecting such secrets in substance. This crime is not to protect the confidentiality itself, but to protect the interests of a public official that are dangerous by infringement on the duty of confidentiality, i.e., the function of a country that is threatened by the divulgence of secrets (see, e

According to the reasoning of the judgment below, the court below acknowledged the following facts based on the adopted evidence: (a) the vehicle of this case was used for the locking duty of the police in the vicinity of the manufacturing site of the similar gasoline of Non-Indicted 1; (b) Non-Indicted 1 asked Non-Indicted 2 to inquire about the vehicle of this case; (c) Non-Indicted 2’s request from Non-Indicted 2 for the tea of this case; and (d) Non-Indicted 1 escaped from Non-Indicted 2; and (c) the vehicle of this case is likely to be used for the duties of the National Police Agency, such as diving investigation; and (d) in the case of a vehicle used for diving investigation, it is necessary not to disclose the fact that the vehicle belongs to the National Police Agency; and (e) in the case of a vehicle used for diving investigation, it is necessary not to disclose the fact that the defendant who was a public official in charge of the duties of provisional holding and public sale of the vehicle of this case, by informing Non-Indicted 2 of information about the ownership relation of the vehicle of this case.

However, in light of the aforementioned legal principles, unlike the registration of real estate available for perusal, it cannot be deemed that the government, public offices, or citizens have substantial interest in disclosing information about the owner of a motor vehicle, which is merely information about the owner of the motor vehicle, and is worth protecting the owner of the motor vehicle, and is threatened with the State’s function by leakage, even if the use of the motor vehicle under the National Police Agency’s control may be carried out as a lock-out investigation, and if there is a de facto need to not be disclosed as stated in the lower court’s reasoning, it does not change solely on such circumstances alone (the information pertaining to the motor vehicle belonging to the Ministry of Justice is disclosed to the Internet according to the investigation function in the record).

Therefore, it cannot be deemed that information on the ownership of vehicles provided by the Defendant to Nonindicted 2 constitutes “official secrets pursuant to the Act and subordinate statutes” under Article 127 of the Criminal Act.

Nevertheless, the lower court found the Defendant guilty of the instant conjunctive charges on the grounds that the instant vehicle’s information belongs to the National Police Agency constitutes “occupational secrets under the Act and subordinate statutes” in the crime of divulgence of official secrets. In so doing, it erred by misapprehending the legal doctrine on the crime of divulgence of official secrets, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part concerning the conjunctive facts charged in the judgment below cannot be reversed, and the part concerning the primary facts charged in the same body is also reversed. Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)