공무상비밀누설죄와 편면적 대향범 - 대법원 2011. 4. 28. 선고 2009도3642 판결을 중심으로 -

Supreme Court Decision 2009Do3642 decided April 28, 2011 seems to apply the principle of "Das Begegnungsdelikt" judging two-way criminality between a public official who divulged official secrets and a taker who instigated the official to reveal the secrets. "Das Begegnungsdelikt" requires more than two individuals who participate in committing a crime in two opposite ways; a performer and a taker. It, meanwhile, is occasionally found that only the performer is punished for committing the crime, which can be called unilateral "Begegnungsdelikt". It would be unreasonable to punish the performer alone for the simple reason that the circumstances of the complicity seem to be categorized into "Das Begegnungsdelikt". In the above-mentioned 2009Do3642 case, Supreme Court of Korea ruled that the public official(the leaker) who divulged the official secrets is the only criminal and the other part(the taker) who instigated him to divulged the secrets is free from the crime as a result of "unilateral" Begegnungsdelikt. Judging this case, in conclusion, Supreme Court of Korea seemed to mistakenly interpret the Article 127 of the Criminal Act(Divulgence of Official Secrets) which regulates only the leaker of secrets as a criminal on charges of revealing official secrets. This case, however, has nothing to do with "Das Begegnungsdelikt" even if it seems to. The taker who instigated the leaker to divulge the official secrets should be also punished as an instigator on charges of revealing them.