공무상비밀누설죄의 구성요건 및 공범 관계에 관한 연구

Abstract

Article 127 of the Criminal Act stipulates the crime of ‘Divulgence of Official Secrets’. In practice, it is often questioned (a) what is the meaning of 'official secrets', (b) what is the meaning and scope of 'divulgence', and (c) how those involved in such divulgence are punished. In general, (a) official secrets include 'matters in which the government, public offices, or citizens have considerable interests in not being known to the outside from an objective and general standpoint', and (b) divulgence means informing other people of confidential information. (c) It is understood that the general provisions of the Criminal Law on accomplices do not apply to the other party because there is no regulation to punish the other party. Despite the established theories and precedents, it is not easy to give a clear answer to the above three issues regarding the crime of divulgence of official secrets during the actual investigation and trial process. First of all, the Supreme Court ruled that ‘official secret’ in the crime of divulgence of official secrets is not necessarily limited to matters stipulated as confidential by law. But, this interpretation violates Article 127 of the Criminal Code and may cause problems that may be arbitrarily judged by prosecutors or courts. Next, ‘divulgence’ is to inform other people of official secrets, and it is possible not only to deliver them directly to the other person, but also to deliver them sequentially through other people or post them on social media. Recently, the Supreme Court ruled that if the other party is a public official, the crime of divulgence of official secrets will not be convicted unless there are special circumstances. The most important problem is that the Supreme Court maintains that the crime belongs to the so-called one-sided counter-crime and that the general provisions of the Criminal Act on accomplices cannot be applied to one-sided counter-offenders, fundamentally blocking the possibility of establishing an accomplice for those who actively participated in the crime. However, it is difficult to regard the crime of divulgence of official secrets as a true one-sided counter-crime. Rather, the crime of divulgence of official secrets is a 'type of crime that requires the premise of a counteractive act'. Therefore, it can be interpreted that a person who is actively involved in the crime can be punished as an accomplice.