Military Justice in the Republic of Korea

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. 5

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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?

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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 16

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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 19

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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 25

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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 28

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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 30

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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 ” 31

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Trial Procedure of Military Court (3/4) Closing Statement : Statement by prosecutor / statement by attorney and defendant : opinion on overall case and request of criminal sanction : 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) 32

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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 35

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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 41

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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 43

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