Foreign suspects caught collecting and leaking military secrets near military bases in South Korea have avoided the application of the espionage charge under the Criminal Act.

Although relevant laws were revised to punish espionage activities on behalf of foreign countries, the enforcement is scheduled for next month (September), leaving authorities with no choice but to apply existing laws.

According to the Security Investigation Division of the Gyeonggi Nambu Provincial Police Agency on the 11th, police recently arrested two Chinese nationals with military backgrounds who engaged in treasonous activities against the Republic of Korea Armed Forces and the U.S. Forces Korea.

The first suspect, A, in his 60s, is accused of installing wiretapping equipment, such as a single-direction receiver (SDR), at a hotel near Gunsan Airport in April to collect communications between fighter jets and the control tower.

Suspect B, in his 40s, an ethnic Korean Chinese national (Joseonjok), is accused of operating a military surplus store near the main gate of the Pyeongtaek U.S. military base (K-6), recruiting a Korean employee inside the base, and stealing classified documents, including materials related to the Freedom Shield (UFS) joint military exercise.

It is extremely unusual for individuals with a history in the Chinese military to be caught committing such crimes in South Korea.

However, instead of applying Article 98 of the Criminal Act on espionage, the police applied Article 99 on general treason and other charges.

The crime of general treason is a provision that broadly penalizes acts harming South Korea's military interests, but its statutory punishment carries life imprisonment or a prison sentence of three years or more.

This differs significantly in punishment level and sentencing compared to the espionage charge, which carries the death penalty, life imprisonment, or imprisonment for seven years or more.

As criticism mounted that the current legal framework was inadequate to strictly crack down on security-threatening acts by foreigners, the National Assembly revised the Criminal Act in February.

The revision expanded the target of the espionage charge from the traditional "enemy country" to include "foreign countries or equivalent entities," enabling espionage charges for detecting, collecting, leaking, or delivering state secrets for foreign countries such as China.

Once the revised Criminal Act takes effect, the suspects in this case would also be subject to the espionage charge.

However, the revised law stipulates that it will take effect six days past six months following its promulgation, with the enforcement date set for September 13 of this year.

Because the timing of the offenses in this case occurred prior to the implementation, the revised espionage charge cannot be retroactively applied in accordance with the principle of non-retroactivity in criminal law.

Consequently, the two individuals are likely to be prosecuted and tried under the charge of general treason rather than espionage.

An official from an investigative agency stated, "Until the revised espionage charge goes into effect, there is a structural limitation where we have no choice but to apply general treason even when clear intelligence activities for foreign nations are uncovered."

Nevertheless, the courts have actively applied the general treason charge even within the current legal framework, reflecting a firm stance against foreign security-breaching activities.

In May, the Suwon District Court applied the general treason charge for the first time to a foreigner, sentencing two Chinese nationals who reconnoitered major South Korean-U.S. military facilities and international airports to prison terms of up to two years.

Subsequently, in June, the Busan District Court also acknowledged the general treason charge against a Chinese international student who filmed a U.S. aircraft carrier entering the Busan naval base with a drone, handing down a prison sentence of one year and six months.

(Photo provided by the Air Force, Yonhap News)