Whether the provisions of the general provisions of the Criminal Act concerning accomplices can be applied to “the act of divulging secrets” which is related to the act of divulging secrets in the course of performing official duties by public officials, etc. (negative)

Articles 30 and 127 of the Criminal Act

Supreme Court Decision 87Do2451 Decided April 25, 198 (Gong1988, 928) Supreme Court Decision 2001Do5158 Decided December 28, 2001 (Gong2002Sang, 440) Supreme Court Decision 2007Do6712 Decided October 25, 2007 (Gong2007Ha, 1970))

Defendant 1 and one other

Defendant 2 and Prosecutor

Law Firm Sejong and 1 other

Seoul Central District Court Decision 2008No841 Decided December 30, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. As to Defendant 2’s ground of appeal

According to the reasoning of the judgment below, the court below determined that the above materials constituted a trade secret as defined in Article 127 of the Criminal Act, on the grounds that, in light of the evidence in its holding, the "standard evaluation results", "price evaluation results", "comprehensive evaluation results", and "name and affiliation of members of the Evaluation Committee", which are included in the materials listed in attached Table 2 of the judgment below, may cause unnecessary time and loss to the credibility and fairness of the bidding results, and thereby, if disclosed outside.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to the requirements for official secrets in the crime of divulgence of official secrets.

2. As to the Prosecutor’s Grounds of Appeal

A. The part on Defendant 2

According to the reasoning of the judgment below, the court below determined that among the materials listed in the attached Table 1 of the crime sight table 1 after the amendment of the judgment below, the materials, such as "astrium company and VNIEM", "after the public tender notice was made," "the progress from the time when the tender notice was made," "major pro ratas of persons in charge of aviation-related fields of satellite 3 business," "the verbal notification of the high-ranking official fee of the Russian Government", "the certificate of performance of the participation of the tender participants", "the relation related to the qualification for participation in the tender and the contents of the proposal", "the problem of failing to request additional materials for the lack of proposals prepared by the proposing agents," "the fairness related to the fairness of the tender price proposal form", and "the fairness related to the fairness of the tender price proposal form", do not constitute a trade secret provided for in Article 127 of the Criminal Act.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to the requirements for official secrets in the crime of divulgence of official secrets.

B. The part on Defendant 1

The provisions of the general provisions of the Criminal Act concerning accomplices cannot be applied to a person who requires the existence of an act in favor of two or more persons (see Supreme Court Decision 2007Do6712, Oct. 25, 2007). An act of Defendant 2, who is a public official, disclosed secrets in the course of performing his duties and an act of Defendant 1’s disclosure of such secrets by Defendant 1, can be said to be in the relation of a crime against one another. However, Article 127 of the Criminal Act only punishs a person who is or was a public official, and there is no provision punishing the other party who has leaked secrets in the course of performing his duties. In light of the fact that there is no provision punishing a person who has leaked secrets in the course of performing his duties, the provisions of the general

For the same reason, the court below's determination that Defendant 1 cannot be punished as a joint principal offender of the crime of divulgence of official duties is just in accordance with the above legal principles, and there is no error of law by misapprehending the legal principles as to the establishment of leakage of official duties

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)