A South Korean man in his 50s, identified as A, was arrested in December 2023 on suspicion of espionage while working for a semiconductor company in Hefei, Anhui Province, China. The National Security Bureau suspects A of leaking semiconductor-related information to South Korea. This marks the first case of a South Korean being detained under the revised anti-espionage law, which took effect in July 2023.
In a contrasting case in South Korea, a Chinese national in his 60s, who served for about 40 years in the People’s Liberation Army’s eavesdropping unit, has been indicted this month for allegedly intercepting military communications. The individual, who retired with the rank equivalent to colonel, is accused of eavesdropping on communications from military aircraft and control towers at Gunsan Airport and military bases in Busan and Pyeongtaek from March 2024 until last month, amassing 13.9 terabytes of intercepted data.
Another Chinese national, also indicted, is a member of the Communist Party who worked for eight years in the People’s Liberation Army’s special forces and the Public Security Bureau. He is accused of running a military supply store near the main gate of Camp Humphreys in Pyeongtaek and of receiving sensitive information related to the U.S.-South Korea joint exercise, “Ulchi Freedom Shield (UFS),” on 12 occasions by recruiting military personnel and civil servants.
However, the charges against them are not for espionage but for general treason. General treason is a supplementary crime aimed at punishing acts that harm the military interests of South Korea but do not fit neatly into the specific foreign exchange crimes listed in the criminal code, such as espionage.
The revised Article 98 of the criminal code, which expanded the definition of espionage from “enemy countries” to “foreign countries or equivalent organizations,” took effect on the 13th. Since the alleged crimes occurred before this change, the principle of non-retroactivity prevents the application of the new espionage law.
The core issue is that even if they collected national secrets for a foreign entity, the espionage law cannot be applied without proving that they acted under the direction or instigation of a foreign entity or equivalent organization. In other words, the “backing” must be established. This is a challenge that the revised espionage law, amended for the first time in 76 years, must address moving forward.
In comparison to China, the differences are stark. China has significantly broadened the scope of espionage activities under its revised anti-espionage law, regulating a wide range of activities related to the theft, detection, bribery, and illegal provision of documents, data, and materials concerning national security and interests. However, the broad definition of national security and interests has drawn fierce criticism from the international community for potential “arbitrary law enforcement” and “violations of fundamental rights.”
This is not a call to adopt China’s anti-espionage law. Rather, it is necessary to evaluate the effectiveness of our laws from a perspective of “reciprocity.” While China applies its anti-espionage law to allegations of industrial information leaks, we find ourselves unable to apply espionage charges against a former Chinese military officer who systematically collected military information unless we can establish a connection to a foreign entity. Is this truly appropriate?
Moreover, industrial espionage should also be punishable under the espionage law. The newly established Article 98-2 (espionage for foreign entities) only punishes the leaking of national secrets for “foreign countries or equivalent organizations.” Therefore, even if a foreign private company steals technology related to semiconductors or batteries, it is difficult to apply espionage charges, unlike in China. The proposal by People Power Party lawmaker Ko Dong-jin to include foreign companies and national core technologies as subjects of the law and to increase the minimum sentence from three years to over ten years reflects these limitations. Although the espionage law has been amended after 76 years, this revision is just the beginning, not the end.
* This article has been translated by AI.
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