Greetings!
Morning Calm, KOREA
History of Korean Military Justice
Organization
Introduction of Current Military
Justice System
Jurisdiction of Military Court
over Civilians
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Legal Basis of Military Justice System (1/2)
Constitution (Amended in 1987)
Article 27
(2) Citizens who are not on active military service…
shall not be tried by Military Court. . .except in case of
crimes as prescribed.
Article 110
(1) Military court may be established as special courts to
exercise jurisdiction over military trials.
(2) The Supreme Court shall have the final appellate jurisdiction
over military courts.
(3) The organization & the authority of military court, and
the qualifications of judges shall be determined by
the Military Court Act.
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Legal Basis of Military Justice System (2/2)
Military Court Act
Convening authority
Organization of military courts & prosecutors’ office
Criminal procedure
Military Criminal Act
Special Crimes (and punishment) applied to military personnel
Military Criminal Administration Act
Detention & penitentiary facilities
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Characteristics of Military justice System (1/2)
1. Separated Jurisdiction from civilian courts
2. Exclusive (NOT concurrent) jurisdiction over
Military personnel
Civilians who committed certain crimes prescribed by law
Civilians who committed certain crimes during martial law is in effect
3. Special Measure in Wartime or National Emergency
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Characteristics of Military justice System (2/2)
Democratic Aspects: Judicial Panel Committee appointed
by Convening Authority (TOP-DOWN WAY),
Review and Sentence reduction by Convening Authority
Independency and Professional Aspects :
Military courts belong to the MND Organization,
Military Judge and Prosecutor's Cross Appointment
& Position System, lay officer (Infantry officer) in the
panel of the Court
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THE PRINCIPLES OF THE COURT
ORGANIZATION AND OPERATION
THE PRINCIPLES OF THE COURT' CONSTITUTION
AND OPERATION
Independency Principle
Democracy Principle
Professionality Principle
Military Court vs Constitutional Issue
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The Cause of constitutional challenge
USA C-M does not belong to the Judicial branch,
according to the Article 3 of the U.S. Constitution
(Dynes v Hoover 61 US 1859)
USA C-M is based on Article 1 of the U.S. Constitution
USA C-M is established under UCMJ
In contrast, Korean military court is based on Korean
Constitution Chapter 5 (Judicial Branch), Article 110
why has the Korean C-M been receiving the constitutional
challenge?
10
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The Meaning of Special Court, Article 110 of
Korean Constitution
Sentence by the military court may not be appealed at
the Supreme Court
When?
Judge and lay officer cannot be guaranteed by
Constitution and Statute
Fundamental Solution: replacement of Article 110 as in
the US system (from judicial branch to legislature)
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Judgment of Constitutional Court
Korean Const. Court made a decision about
constitutionality of the Military Court
In 1996, Korean Const. Court determined that the
Operation of military court is permissible and
constitutional.
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Countries with C-M vs without C-M
Distinction
(total 42 countries)
8 Countries without C-M
27 Countries
with C-M
7 Countries with
mixed style court
Countries
Remark
Austria, Czechoslovakia,
Lithuania, prosecutor,
Sweden, Slovenia, Japan
Canada, Denmark, England, Poland,
Romania, Spain, Suisse, Korea,
Israel, Turkey, USA, Italy,
Republic of South Africa, Mexico, Brazil,
Australia, Peru, China, Indonesia, Vietnam,
Myanmar, Chile, Pakistan, Argentina,
Bangladesh, Malaysia, Russia
Hungary, Latvia, Finland, Bulgaria,
France, Netherlands, Norway, Germany
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The Necessity of the Military Justice System
in Korea
Promptly avoid negative effects of military crimes
on the barracks
Jurisdiction change necessary for speedy trial
(according to Korean military dispatch such as UN
Peace-Keeping Operation)
Establishing Military Disciplines & Commander
Leadership considering characteristics
of Military Missions such as Military Operations
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History of Military Justice System (1/2)
1945. 8
At the end of WWII, the U.S C-M system was adopted
• Three types of C-M :
- General, Special, and Summary
• No Appeals
1954. 11
The C-M found its constitutional basis
• Constitutional amendment recognized C-M as
a special court
• It allowed the Supreme Court
to hear appeals of the C-M judgments
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History of Military Justice System (2/2)
1962. 1
1987. 10
Our own Court Martial Act was enacted
• American C-M system (convening authority) +
Civil Law (criminal procedure)
• Three-Tier Appellate system
Constitutional amendment renamed C-M
the Military Court
1994. 7
Military Court Act was amended
• Four appellate military courts merged into one.
• General military court’s composition changed
from one judge & two lay officers
to two judges & one lay officer
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Characteristics of Military justice System
Organization part : Adopting U.C.M.J.
Convening Authority, lay officer (panel)
Criminal Process part : Adopting Continental Law System
Since 1962
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Military Criminal Procedure
Supreme
Court
General
Military
Court
Prosecutors’
Office
Court of
Military
Appeals
Chamber
(final judgment)
Investigation
JAGC
Investigators
Military Police
(general)
Military
Prosecutor
Chamber
Chamber
Defense Security
Command
(national security)
submit
indict
Appeal
Reappeal
※ MP → Prosecution → G-C → CMA → Supreme Court
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Final Disposal of Military Prosecutor
Various Kinds of Contents of Final Disposal
ⓑ indictment
ⓐ Contents of Final
Disposal after
Ending of
Investigation
Non-indictment
suspension of indictment, Acquittal,
ⓒ Stay of Prosecution, etc.
Transfer to the C-M
jurisdiction
Sending the case
to Civil Prosecutior
1 months
Civil Prosecution
※ Military Court Act, Operation of Military Prosecutor Affair Act, Operation of
Military Prosecutor Affair Rule, Operation of Military Prosecutor Affair Directive
Who has authority to make the final decision concerning
above process? ⇒ Military Prosecutor
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Military Criminal Procedure
The Notification for Commander
Who and To Whom?
Military Prosecutor & Commander
Notification for what?
Start-up of investigation & Final Disposal by Prosecutor
(Military Proscution enforcement regulations article 70)
⇒ To consider characteristics and establish Command Leadership
of the military
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Military Criminal Procedure (arrest · confinement)
Arrest
- Arrest by Warrant
- Arrest without Warrant
- Arrest of a suspect
caught in action
Judicial Review
of Arrest
Dismissal
ⓐ Request of Issuance
of Arrest Warrant
within 48 Hours
from the Arrest
Issuance
of Arrest
Warrant
Approval of
Commander
Confinement
of Suspect
Dismissal
Confinement
Trial
Judicial Review
of Confinement
Release
Non-Confinement
Trial
Release
Preliminary Petition
for Arrest Warrant
Release on Bail
Confinement
- Confinement by
Confinement Warrant
without Arrest
Ⓑ Rejection of
Warrant Request
Judicial Review
of Warrant
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Release of
Suspect
Non-Confinement
Trial
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The Comparison of confinement between Korea
& U.S.A In The Military Justice
Distinction
KOREA
Cause of Confinement Probable Cause
USA
Probable Cause
Items to notify the
suspect in the arrest
procedure
Key Contents of offense,
Self-incrimination, Cause of
confinement, Right to
Counsel
The Role of
commander in
arrest & confinement
procedure
Prior Approval of Commander
& Request of Military
Decisive Role
Prosecutor, Military Judge
has final Authority
Pre-trial Restraint
Arrest without warrant,
Arrest without red-handed,
Arrest by Warrant
Various style of pre-trial restraint
control for arrest &
confinement
Review for legality of
arrest & confinement
① Review by an independent officer on probable cause within
48 hours from the point of arrest
② After pretrial arrest, decision to be made by the commander
within 72 hours on whether to continue arrest
③ Control by a military magistrate by less-than-7 days review
④ After indictment, control by a military magistrate such as
multiple level review process, etc.
confinement period in
investigation
procedure
General Case: within
30days(M.Police - 10days /
M.Proscution 20)
Trial must begin within 120 days from confinement date.
if not, release!
Miranda Rule
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A sort & Official authority of investigative agency
Distiction
GUBANG
KYUNGBI LAW
▪ Non-Investigative
C-M LAW
(1963,12.16, Statue1619)
▪ Prosecute a case & Sustain
a case In a Trial
Authority
Military Prosecutor
▪ Sustain a case In a
C-M LAW
(1987.12.4 Statue3993)
▪ Limited Investigative Authority
▪ Prosecute a case & Sustain a case
▪ General Investigative Authority
(Cases which CA direct &
Trial
are Sended by MP)
▪ Provision of Investigative limitation
▪ Provision of Investigative
Military Police
▪ Investigative Authority
according to the Sort of investigative
Agency
limitation according to the
Sort of investigative Agency
▪ Creationof prosecution investigtor,
▪ Investigation by Military Prosecutor's
Order
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A Sort of Military Police & Scope of Investigative
Authority
A Sort of Military Police
Scope of Investigative Authority
Officer and petty officer of military police department
All Cases of C-M Jurisdiction except Cases of Military Security
and other military personnel statutorily in charge of
Police Jurisdiction
criminal investigation.
① Rebellion and Treason, as defined in the Criminal Code
② Revolt and Treason, as defined in the Military Criminal Code
③ Leakage of Military Secret and False Use of Password
④ Violation of National Security Act
Officer, petty officer and military personnel statutorily
under the command of Military Security Police
⑤ Violation of Military Secret Protection Act
⑥ Violation of Act on Exchange and Cooperation of North
Command providing securities service
and South Korea
(Military Security Police)
⑦ Violation of Public Association and Protest Act
(limited to instances when a person who violated
National Security Act has also violated Public Association
and Protest Act)
Military Prosecution investigator
All Cases of C - M Jurisdiction
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Military Criminal Procedure
(Military Police and Military Prosecutor) (1/2)
Article 45 of Military Court Act: Military police shall,
in investigating a crime, must obey to the orders of
superiors in direct line of order
Prosecutor's right to command investigation of military
police defined:
Arrest(Article 238) / Commanding the execution of the writ of arres
t and the writ of search and seizure(Article 119 and 156 of Military
Court Act)
Inspection of the detaining place(Article 230)
Inquest of body killed by accidental cause(Article 264(4)) and
more
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Military Criminal Procedure
(Military Police and Military Prosecutor) (2/2)
Flow Chart of Notification of Transferred Cases
Civil Police
Transfer
Military Police
Military Prosecutor
Notification of
case(72 hrs)
Quarterly
Report
High Prosecutor's
Office
In case of booking a case or receiving a case transferred from civil
police, military police must notify military prosecutor of such case
within 72 hours
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Power to Appoint a Prosecutor under the
Military Justice System
Appointment of a Prosecutor
Prosecutors of Army, Navy and Air Force Headquarters are
appointed among the servicing Judge Advocates by the
respective Chief of Staff, (Article 41 of Military Court Act)
Prosecutors of Ministry of National Defense Prosecutor's Office is
appointed by the Minister of Defense(Qualification of Article 41(1)
of Military Court Act)
※ Chief of Staff of each service shall manage General
Prosecutor's Office as a commander and supervisor of
prosecutory function of each military service.
(Article 38 of Military Court Act)
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Notable Feature of Investigation Structure
under the Military Justice System
Military Investigation Agency
Military Police → Military Prosecutor
Military Prosecutor has both investigatory power and prosecutor
power
☞ US Military: Military Prosecutor only has prosecutor power
Prosecutor has exclusive power of indictment - exclusive decision
to make indictment
☞ US Military: Commander of the Jurisdiction has the power to
make referral
Type of Non-Indictment (Acquittal, Suspension of Indictment, No
Criminality, No Prosecutor Jurisdiction)
Commander may participate in the investigation as a means to
command/supervise the prosecutor
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Appointer of Military Judge under the
Military Justice System
Appointment of Military Judge
Appointment of military judge of MND shall be appointed by
minister of defense
(qualification of Article 23(1) of Military Court Act)
Military Judge of each service shall be appointed among servicing
Judge Advocates by the Chief of Staff
(Article 23(1) of Military Court Act)
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Trial Procedure of Military Court (1/3)
Commencement - Confirmation of presence of defendant
and attorney
Right to remain silence notified
Identification Interrogation
Identification of defendant by asking the defendant's name,
resident registration number(serial number), age, post,
registered residence(domicile) and profession
Opening Process :
Opening statement of prosecutor : criminal fact, name of crime,
applicable statute, gist of indictment
Opening statement of defendant and attorney : plead of guilty or
not guilty, facts in favor of the defendant
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Trial Procedure of Military Court (2/4)
Evidence Inspection:
Submission of evidence list by prosecutor - defendant's
attorney's opinion on the submitted evidence : when in
consent, acceptance of evidence and initiate the
inspection ; when not in consent, request for witness
Interrogation of Defendant :
Upon completion of evidence inspection, an interrogation
on issues necessary to support prosecution /
in exceptional cases, interrogation may be allowed
before the completion of evidence inspection
“ Defendant interrogation is conducted in the order of prosecutor,
lawyer and the judge ”
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Trial Procedure of Military Court (3/4)
Closing Statement : Statement by prosecutor / statement
by attorney and defendant
<Statement by prosecutor> : opinion on overall case and request
of criminal sanction
<Statement by attorney and defendant> : Rebuttal of prosecutor's
opinion and closing remarks on the case
Sentencing :
Explanation on case assessment and recitation of the text of
judgment
When a party is dissatisfied with the court sentence, appeals
period is notified (7 days from receiving the confirmation letter)
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Trial Procedure of Military Court (4/4)
Dismissal of the Trial declared by the chief judge
Action by Convening Authority after sentencing
(imprisonment, criminal fine)
Limitations present since appeal or change of punishment is not
allowed
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Power of Convening Authority under
Military Justice System
Authority vis-a-vis Military Prosecutor
Management of military prosecution, general or specific command
/supervision on military prosecution(from Article 38 to 42)
Authority to approve issuance of writ of arrest requested by prose
cutor(Article 238(3))
Right to receive report on criminal investigation (Article 284)
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Authority of Convening Officer under
Military Justice System
Authority vis-a-vis Military Court
Authority to manage administration of Military Court(Article 8)
Authority to convene Military Court(Articles 24, 25)
Authority to confirm the judgment(Article 379)
※ Authority to confirm the judgment cannot be exercised on
appeals
※ Role of Convening Officer can be entrusted to division
commander or higher
cf) In the US, Convening Authority is defined in accordance
with the type of Military Court: Summary C-M: Company
Commander; Special C-M: Regimental Commander;
General C-M: Division Commander
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Foundation and development of
High Court for the Armed Forces
2000. 7. 1.
High Military Court founded
2001. 10. 23.
High Military Court moved to the new building
2010. 2. 10.
Electronic trial system convened
2010. 7. 1.
10th anniversary of High Military Court Foundation
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High Court for the Armed Forces
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Duty and Function of High Court for the
Armed Forces
Duty / Function
Trial on appealed cases and other cases that fall under the
jurisdiction of High Military Court by statutes
Research and study on cases
Provision of public defender and legal assistance under
Necessary Public Defender System
Other Military Justice management and legal administration
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Task and Organization of High Court for the
Armed Forces
Supreme Court
MND Minister
General Counsel
Division 1
High Court for
the Armed forces
Trial Research Division
Trial Defense Division
Division 2
Administrative Division
MND General
Military Court (1)
Army General
Military Court (49)
Navy General
Military Court (14)
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Air Force General
Military Court (19)
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Future Development of Korean Military
Justice System
Active adoption of the sentencing standard of the
Supreme Court('09. 7. / '11. 2) and the sentencing
standard of Military Court on pure military criminal
Convocation of debate round on sentencing standard by
military judge of all divisions (once in every six months)
Ethics education for military judge
Establishment and application of strict procedure for
attorney's work-related visit to military judge
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Enhancement of Expertise
Separation of Prosecutor's Office and Military Court,
and prohibition of exchange of personnel
Education by experienced judges of civil courts
(e.g. Supreme Court)(once in every six months)
Education of Lay Officer, Military Judge, Court Clerk
Promotion of post arrestment judicial review such as
that of the US
Expansion of public defender assistance
Facilitation of interchange with foreign military courts
Comparative study of foreign military justice system
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Promotion of Democratic Trial Process
Establishment of peer jury assembled by a body of lay
officers who are in the same rank with the defendant
(only officers may become lay officers now)
Establishment of a bench assembled by drawing by
defendant or commander among the pool of lay officers
Limitation on convening officer's peacetime authority to
confirm judgment, as authority to confirm judgment or
reduction of sentenced punishment may be
unconstitutional
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Promotion of Expedite Trial Process
Improvement of trial management for expedite trial
process
※ Active adoption of preliminary hearing session and
concentrated trial
Expedition of trial by establishment of permanent Lay
Officer system
Establishment of Online system directed at promoting
considerate operation of trial by military judge and
allowing defendant and his families to check trial
procedure
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