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| TITLE | Supreme Court en banc Decision 2008Jaedo11 Decided January 20, 2011【SpyingㆍAiding and Abetting of EspionageㆍViolation of the National Security ActㆍViolation of the Military Government Ordinance No.5】 [full Text] |
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| Summary | |
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[1] Meaning of “group or organization” in the context of violation of Articles 1 and 3 of the former National Security Act; standard of determining its subjective element of “the purpose of fraudulently using the title of the government or to rebel against the State” [2] The case holding that the “Progressive Party,” formed by the Defendant upon the doctrines and policies of achieving peaceful unification, is not an “illegal group” as defined under Articles 1 and 3 of the former National Security Act [3] Allocation of the burden of proof of the facts charged in a criminal trial (i.e., the prosecution), and the requisite probative value of the evidence for conviction [4] Meaning of “spying” under Article 98(1) of the Criminal Act, and whether reporting and/or leaking to a spy information that a spy already possesses through detection and collection constitutes spying (negative) [5] The case holding that the facts charged of the Defendant’s “spying” cannot be seen as an act of spying under Article 98(1) of the Criminal Act in and of itself, as there is insufficient evidence to establish espionage, and as the Defendant only reported and/or leaked items of information that the spy already possessed [6] Where a case re-opened for a retrial when the statutes at the time of the original case have been changed, which statutes should be applied to the facts (i.e., statutes in force at time the case is re-opened) [7] In a re-opening of proceedings of Supreme Court Decision 4291Hyung Sang559 decided February 27, 1959 (the so-called “Progressive Party case”), the case: (a) reversing the portion of the judgment below and the judgment of the first instance court convicting the Defendant; (b) directly ruling to dismiss the Prosecutor’s appeal against the first instance court’s verdict of acquittal of violation of the former National Security Act; (c) acquitting the Defendant of the charge of spying; and (d) suspending the sentence for illegal possession of a weapon |
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