High Court for the Armed forces

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Military Justice in the Republic of Korea
High Court for the Armed forces KOREA
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Greetings!
Morning Calm, KOREA
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Contents
History of Korean Military Justice
Organization
Introduction of Current Military Justice
System
Jurisdiction of Military Court over
Civilians
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(No Transcript)
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Legal Basis of Military Justice System (1/2)
(2) Citizens who are not on active military
service shall not be tried by Military
Court. . .except in case of crimes as
prescribed.
(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)
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Characteristics of Military justice System (1/2)
1. Separated Jurisdiction from civilian courts
2. Exclusive (NOT concurrent) jurisdiction over
3. Special Measure in Wartime or National
Emergency
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Characteristics of Military justice System (2/2)
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THE PRINCIPLES OF THE COURT ORGANIZATION AND
OPERATION
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The Cause of constitutional challenge
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The Meaning of Special Court, Article 110 of
Korean Constitution
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Judgment of Constitutional Court
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Countries with C-M vs without C-M
Distinction (total 42 countries) Countries Remark
8 Countries without C-M Austria, Czechoslovakia, Lithuania, prosecutor, Sweden, Slovenia, Japan
27 Countries with C-M 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
7 Countries with mixed style court Hungary, Latvia, Finland, Bulgaria, France, Netherlands, Norway, Germany
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The Necessity of the Military Justice System in
Korea
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History of Military Justice System (1/2)
At the end of WWII, the U.S C-M system was
adopted

• Three types of C-M
• - General, Special, and Summary
• No Appeals

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)

• 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

• Military Court Act was amended
• Four appellate military courts merged into one.
• General military courts composition changed
• from one judge two lay officers
• to two judges one lay officer

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Characteristics of Military justice System
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Military Criminal Procedure
? MP ? Prosecution ? G-C ? CMA ? Supreme Court
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Final Disposal of Military Prosecutor
suspension of indictment, Acquittal, ? Stay of
Prosecution, etc.
1 months
? Military Court Act, Operation of Military
Prosecutor Affair Act, Operation of Military
Prosecutor Affair Rule, Operation of Military
Prosecutor Affair Directive
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Military Criminal Procedure

• Military Prosecutor Commander

• 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)
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The Comparison of confinement between Korea
U.S.A In The Military Justice
Distinction KOREA USA
Cause of Confinement Probable Cause Probable Cause
Items to notify the suspect in the arrest procedure Key Contents of offense, Self-incrimination, Cause of confinement, Right to Counsel Miranda Rule
The Role of commander in arrest confinement procedure Prior Approval of Commander Request of Military Prosecutor, Military Judge has final Authority Decisive Role
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 ? Review by an independent officer on probable cause within 48 hours from the point of arrest ? After pretrial arrest, decision to be made by the commander within 72 hours on whether to continue arrest ? Control by a military magistrate by less-than-7 days review ? 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!
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A sort Official authority of investigative
agency
Distiction GUBANG KYUNGBI LAW C-M LAW(1963,12.16, Statue1619) C-M LAW(1987.12.4 Statue3993)
Military Prosecutor ? Non-Investigative Authority ? Sustain a case In a Trial ? Prosecute a case Sustain a case In a Trial ? Limited Investigative Authority (Cases which CA direct are Sended by MP) ? Prosecute a case Sustain a case ? General Investigative Authority
Military Police ? Investigative Authority ? Provision of Investigative limitation according to the Sort of investigative Agency ? Provision of Investigative 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 and other military personnel statutorily in charge of criminal investigation. All Cases of C-M Jurisdiction except Cases of Military Security Police Jurisdiction
Officer, petty officer and military personnel statutorily under the command of Military Security Police Command providing securities service (Military Security Police) ? Rebellion and Treason, as defined in the Criminal Code ? Revolt and Treason, as defined in the Military Criminal Code ? Leakage of Military Secret and False Use of Password ? Violation of National Security Act ? Violation of Military Secret Protection Act ? Violation of Act on Exchange and Cooperation of North and South Korea ? 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)
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Military Criminal Procedure(Military Police and
Military Prosecutor) (2/2)
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Power to Appoint a Prosecutor under the Military
Justice System
? 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
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Appointer of Military Judge under the Military
Justice System
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Trial Procedure of Military Court (1/3)
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Trial Procedure of Military Court (2/4)
Defendant interrogation is conducted in the
order of prosecutor, lawyer and the judge
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Trial Procedure of Military Court (3/4)
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Trial Procedure of Military Court (4/4)
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Power of Convening Authority under Military
Justice System
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Authority of Convening Officer under Military
Justice System
? 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
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High Court for the Armed Forces
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Duty and Function of High Court for the Armed
Forces
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Task and Organization of High Court for the Armed
Forces
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Future Development of Korean Military Justice
System
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Enhancement of Expertise
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Promotion of Democratic Trial Process
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Promotion of Expedite Trial Process
? Active adoption of preliminary hearing session
and concentrated trial
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Thank You