Review on National Security Oriented JUDICIAL System of Republic of KOREA

다국어 초록 (Multilingual Abstract)

According to this comment, the argument that the investigation method of the national security authority need to be changed can gain persuasive momentum. For the national security investigation to be effective, legal. Systemic devices shall be systemized to fit the recent situation. To put it more concretely, it is necessary to amend the Protection of Communications Secrets Act to enable legitimate execution of monitoring warrant etc. according to the development of digital technologies in the course of investigation by the investigation authority in national security cases, and to approach with the special provisions on criminal procedure for na-tional security offenders. For example, as the technologies and IT industry developed drastically, the approach to the act to serve the interest of the enemy needs to be diversified. In other words, based on current law sys-tem, even though the act to serve the interest of the enemy and behavior of communication with spies (infor-mation delivery, instruction, recruiting personnel, education, publicity, etc) using SNS etc. , the proofs obtained in the course of investigation are incapacitated, as national security investigation is impossible due to the prob-lems such as the declared policy of non-acceptance of monitoring warrant on Kakao Talk messenger and non-acknowledgement on statements of evidence on national security offender etc. Accordingly, in consideration of domestic situation where telephone communications within the territory or with foreign territory are to be monitored for the purpose of national security but cannot be submitted to the court as proof, it is necessary to progressively embark on special legislation in consideration of the special characteristics of spy investigation by systemizing mobile phone monitoring or restriction on the right to interview and communicate with counsel and closed trial etc. The national security criminal exemption law systems in advanced overseas countries are connected to the power of law enforcement institutions. In case of information or investigative agency enforcing legal system, the retrogression of evidence rule or related policy according to the criminal skills developing every day causes contraction in information or investigation activities. Of course, the strict criterion of compliance with due pro-cess by the Constitution, but without acknowledgement on the advanced country-type evidence rule or exemp-tion pursuant to criminal procedure, terror or spy suspect is arrested through intelligence or investigation activ-ities but the evidencing power may be denied at the trial stage, causing demoralization and contraction on in-vestigative activities. In addition, if the legal system cannot trace the corresponding criminal skills, then the investigative activities would be contracted and crime prevention effect would not be anticipated. This is be-cause any restriction on investigation activities on even the crime that could cause serious threat to the benefit and protection of the social or national law such as terror or spies due to an inferior legal system can revive the nightmare of another 9/11 terror. Within the new security environment of the threat of international terrorists and the division into North and South co-existing, Korea’s legal system and policy cannot respond to the new national security situation with old-fashioned position and complacent attitude. In such a new security envi-ronment. a new approach is required at this point in time.