The Comprehensive Special Prosecutor's team, led by Kwon Chang-young, is reportedly leaning towards not prosecuting former President Yoon Suk Yeol and others for rebellion related to the December 3 emergency martial law. However, legal experts are arguing that rebellion charges should be applied separately. They contend that if the martial law forces deviated from or incapacitated the normal military command structure, it constitutes a distinct violation of legal interests separate from insurrection.
According to legal sources on August 18, the Comprehensive Special Prosecutor's team investigated the rebellion allegations against former President Yoon but is likely to decide against prosecution. This is attributed to the overlap of insurrection charges and protected legal interests, as well as the difficulty of establishing rebellion under existing Supreme Court precedents.
Previously, the Insurrection Special Prosecutor's team, led by Jo Eun-seok, maintained that it is challenging to apply rebellion charges separately. They view the emergency martial law, led by former President Yoon, as encompassing specific actions such as bypassing the command structure, which fall under the charges of insurrection leadership and significant mission involvement.
One of the key legal precedents is the Supreme Court's ruling on April 17, 1997, in case 96Do3376. The court defined rebellion under the Military Criminal Act as an act where multiple soldiers conspire to carry weapons and rebel against national sovereignty, determining that 'national sovereignty' includes military command and authority.
However, the court also ruled that certain actions taken during the May 18 incident, which were conducted with the approval or tacit consent of the then-president, do not constitute rebellion. They concluded that troop movements approved by the military's highest commander cannot be viewed as rebellion against command authority.
Conversely, interpretations have emerged suggesting that insurrection and rebellion protect different legal interests based on the same ruling. Article 87 of the Criminal Code punishes acts of rebellion aimed at disrupting the constitutional order. Additionally, Article 91(2) defines the coercive overthrow of state institutions established by the constitution as a disruption of the constitutional order.
The 96Do3376 ruling stated that 'national sovereignty' in rebellion includes military command and authority. This has led to interpretations that violations of constitutional authority and deviations from the normal military command structure can be assessed separately.
Attorney Kim Kyung-ho of the law firm Ho-in emphasized that the 96Do3376 ruling recognized rebellion as an act of defiance not only against military command but also against state institutions. He stated, "While the protected legal interests of insurrection and rebellion overlap to some extent, they do not necessarily align completely." He argued that defiance against state institutions may overlap with insurrection, but defiance against the military command structure can be evaluated as a separate legal violation.
Attorney Kim also noted that even in cases where the protected legal interests of both crimes overlap, such as the deployment of armed forces to the National Assembly, this should not be immediately used as a basis for non-prosecution of rebellion charges. Given that the insurrection case involving former President Yoon is currently in the appeals process, he argued that the court should include rebellion allegations in the amended indictment and determine the validity of both charges and their relationship.
The applicability of the 'presidential approval' legal principle from the 96Do3376 ruling to the December 3 emergency martial law is also a contentious issue.
Attorney Byeon Byeong-sik of the law firm Ilro explained to Aju Economy that the constitutional military command authority is not a personal right of the president but 'national sovereignty regulated by the constitution and laws.' He stated, "Unconstitutional directives aimed at insurrection cannot be considered legitimate exercises of command authority."
Attorney Byeon analyzed that insurrection aims to 'render the exercise of state authority impossible (constitutional order),' while rebellion protects 'the establishment of military command structure and internal military order (military sovereignty).' He added, "Actions that bypass or incapacitate the operational command line should be viewed as separate violations of the military command structure. If subordinate commanders independently conspired and executed actions that blocked or bypassed the regular command structure, at least the charge of significant mission involvement in rebellion should apply to them."
To substantiate these legal principles, facts have been reported to the special prosecutor's office. Kim Hyun-seok, who participated in military communication system development and technical support for 27 years, submitted evidence suggesting that some martial law forces intentionally turned off command and control equipment and moved under someone's orders.
Kim's legal representative, attorney Ryu Jae-yul of the law firm Joonsim, stated, "We provided military materials that clearly indicate that the martial law forces intentionally turned off command and control equipment and moved under someone's orders on December 3." He argued that the decision to withdraw the rebellion charge should be reconsidered until the relevant facts are confirmed.
He further stated, "If multiple soldiers conspired to carry weapons and instigate a rebellion, this would fall under the rebellion charge. If the materials submitted by Kim can confirm which soldiers received orders and to what extent, it appears that rebellion can be proven."
There are also concerns that the president's directives regarding martial law and troop deployment are separate from whether he ordered or approved the blocking of command and control equipment and bypassing the normal command structure. If a specific military command line made independent decisions, it raises questions about whether the legal principle of 'presidential approval' from the 96Do3376 ruling can be applied directly.
Article 9(2) of the Military Organization Act states that the Chairman of the Joint Chiefs of Staff shall command and supervise operational units tasked with combat under the orders of the Minister of National Defense. The Capital Defense Command and the Army Special Warfare Command are also included in the operational command under relevant laws. Whether these units operated through the normal command structure centered on the Chairman of the Joint Chiefs of Staff or through a separate command line during the emergency martial law is directly related to the determination of rebellion charges.
Attorney Ryu emphasized, "The exercise of military command authority by the president during the December 3 martial law exceeded the limits set by the constitution and laws." He argued that the troop deployment and movement resulting from this constituted a distortion of the military command structure, qualifying as rebellion.
The Supreme Court's ruling in case 66Do152, delivered on April 21, 1966, is also referenced in relation to this legal principle. The court determined that in a case of conspiracy to overthrow the government using military forces, the elements and protected legal interests of rebellion and crimes under the National Security Act at that time were different. Although this ruling did not directly address the relationship between insurrection and rebellion, it serves as an example of different protected legal interests arising from a single act.
As a result, legal experts are urging the Comprehensive Special Prosecutor's team to clarify whether the martial law forces deviated from the command structure before making a decision on rebellion charges. Key issues include whether the failure to use command and control equipment was intentional, who issued any separate orders, and whether the normal command structure was actually excluded.
* This article has been translated by AI.
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