[Technology Leaks in K-Defense ②] Espionage Law Not Applied Even for Level 2-3 Secrets… Two-Year Suspended Sentence

Espionage Law Cannot Be Applied in Practice to Leaks of Defense Technology
Advanced Countries Control Leaks Through Overlapping Legislation Due to Security Concerns

Even if hacking or individuals leak information from defense companies, criminal punishment under the current law is little more than a slap on the wrist. While advanced countries impose severe penalties for leaking military and defense industry secrets, in Korea, the espionage law is limited to North Korea, so there are few applicable laws other than the Military Secrets Protection Act. Since the Defense Industry Technology Protection Act is the only applicable law, there is a consensus that the espionage law should also be applied under the Criminal Act.

The espionage law punishes acts committed for enemy states. The problem is that North Korea is not recognized as a state under the Constitution, making its application difficult, and other countries cannot be considered enemies, so the espionage law cannot be applied. A legal expert stated, “Leaking defense technology threatens national security and causes significant economic damage, so it is necessary to redefine the Defense Industry Technology Protection Act to allow the application of the espionage law.”

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◆ Espionage law cannot be applied even to leaks of classified information = According to the Military Criminal Act enacted in 1962, the espionage law applies to those who act as spies for the enemy, those who assist enemy spies, and those who leak military secrets to the enemy. Here, “enemy” is interpreted as North Korea. As a result, if the recipient of the leak is not North Korea, it is often impossible to punish under the espionage law.

For example, a retired Air Force general, Mr. A, sold information related to the introduction of the Joint Air-to-Surface Standoff Missile (JASSM), classified as military secret level 2 or 3, to a U.S. defense contractor between 2006 and 2007. However, because the recipient was not North Korea, he was charged with violating the Military Secrets Protection Act instead of the espionage law. The Supreme Court sentenced him to 10 months in prison, suspended for two years. The same applied to Hwang, a former operations team leader at the Defense Security Command. He leaked the names of Korean intelligence officers active in China and elsewhere, but was charged with general anti-state activities under the Criminal Act, not espionage, and was sentenced to four years in prison in 2019.

◆ Even current punishment laws are difficult to apply depending on interpretation = The Defense Industry Technology Protection Act, enacted in 2015, has undergone several revisions. Its penalty provisions have also been strengthened. At the time of its enactment, the penalty was “up to 15 years in prison or a fine of up to 1.5 billion won.” The law, strengthened last year, now provides for “up to 20 years in prison or a fine of up to 2 billion won.” However, there are loopholes. Article 21, Paragraph 1 of the Defense Industry Technology Protection Act is problematic. It specifies that punishment applies only if the technology is leaked for the purpose of use abroad or to be used abroad. Legal experts agree that, for the crime of leaking defense industry technology overseas to be established, there must be a purpose of use abroad, which is difficult to prove.

In contrast, advanced countries are strict about the leakage of defense secrets. The United States does not distinguish between defense technology and general industrial technology. It has enacted various laws to prevent loopholes. In 1996, it enacted the Economic Espionage Act (EEA), which includes criminal penalties. Under the EEA, those deemed economic spies can be fined up to $5 million or imprisoned for up to 15 years. There are also separate laws related to the defense industry, such as the “DoD 5000 Series” defense procurement regulations. These regulations include the Department of Defense’s procurement management policies, principles, and guidelines for protecting critical program information. The organizational structure is also robust. The Defense Security Service (DSS) and the Defense Technology Security Administration (DTSA), both under the Department of Defense, are dedicated solely to responding to leaks of defense secrets. In particular, to counter hacking, the Department of Defense established the Defense Counterintelligence and Security Agency (DCSA) in 2019 to handle personnel vetting and prevent leaks in the defense sector.

Japan is similar. In 2013, it enacted the Act on the Protection of Specially Designated Secrets to control information in four areas: security, diplomacy, defense, and counterterrorism. The law aims to prevent leaks of classified information by public officials and employees of defense companies. In 2022, Japan also enacted the Economic Security Promotion Act to support competition in advanced technologies as the country’s defense industry becomes increasingly dependent on foreign countries. The law designates 25 technologies, such as technologies for weapons of mass destruction, core critical technologies, and new domain technologies, as non-disclosable. In Germany, if economic espionage is conducted at the national level, Article 99 of the Criminal Code applies, while the Trade Secrets Protection Act is applied to industrial espionage at the private sector level.

Attorney Lee Hyungseop, a former military judge advocate, said, “It is necessary to strengthen the effectiveness of the law by expanding the scope of the espionage law to reflect diplomatic and security realities and by easing the burden of proof under the Defense Industry Technology Protection Act.”

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