A Study on the Concept of National Confidentiality in South KOREAN CRIMINAL LAW

Legal interests are the best value for maintaining a peaceful order in society. The legal interests of penal law is one of the most significant values among others protected by so many laws. The fundamental priciple of criminal law is the benefits and protection of the law, which consists of national, social and individual legal interests. In particular, the national legal interests is related to the existence and security of the state, therefore it is a very important legal benefits. Thus, this study will try to formulate the concept of national secret in order to apply the criminal law accurately. This research has been conducted to draw the concept of judging the national confidentiality based on the principle of legality(nulla poena sine lege). The Supreme Court precedents of the Republic of Korea state that the national confidentiality should not include facts, articles, or knowledge that are already widely known to the general public through proper procedures in Korea. National confidentiality should be kept as a secret for national interests. To be treated as national confidentiality, there must be a real threat to national security if it were publicly available. In general, there are three criteria for judging national security. First, a ‘theory of formally designated as secrets’ recognizes only the national secret as an explicit indication that the government organization prohibits the public from being known. Second, a ‘practical secret theory’ means regardless of a formal designation as a secret, if the contents of a document is critical to be preserved and it has a substantial value as a secret, which is recognized as confidentiality. Third, a ‘merge theory’ is a position that can become national secret if it has both formally designated and practically valuable as secret. In conclusion, it is reasonable that ‘publicly known facts’ and ‘trivial things’ should be excluded in order to comply with the meaing of national secret. And conventional wisdom and current social atmosphere of Korea should be reflected during the process of classifying actual secrets. Furthermore, it needs to have an objective and concrete analysis on each field. Nevertheless, if the judgment on confidentiality is still ambiguous and unclear, then the principle of in dubio pro reo should be applied and favorable to the defendant.