High Court Armed Forces Republic of Korea

The primary investigating authorities include investigators from the (civilian) prosecutors’ office, the military police, the Defense Security Command, and the National Intelligence Service. The latter two have the authority to investigate only on specific cases relating to a violation of National Security Act or Military Secret Protection Act. Investigators of the military police have the authority to investigate on the rest of other cases. However, investigators from the military prosecutors’ office have the authority to investigate on all crimes.

 

An investigation commences with clues gathered from findings of criminal suspect, cognition, accusations or complaints. The booking procedure registers a case to the case records and takes the suspect’s fingerprints, who are now the accused.

 

The basic form of investigation is voluntary investigation, which means it is based upon consent and voluntary cooperation of the person who is investigated. On the contrary, compulsory investigations must follow a warrant issued by a military judge. An arrest warrant is required to detain a suspect. With the recommendation from the investigating authorities, military prosecutors request to military judges for issuance of a warrant. The request for arrest warrant requires a prior approval from the commander of the unit where the military prosecutors’ office is located. The military judges examine whether a probable cause exists to suspect that the suspect has committed a crime and whether there are reasonable grounds enough to suspect that he/she may destroy evidence or flee.

 

When the suspect is arrested/detained, he/she must be informed of his/her Miranda rights: he/she has the right to remain silent, and that anything the person says will be used against that person in court, and he/she has the right to retain an attorney. Also, his/her family must receive a notice of the reason, time and place of the arrest.

 

A military judge issues search and seizure warrant with recommendation from the investigating authorities and request from the military prosecutors. Unlike the arrest warrant, a prior approval from the commander is not required. The most common search and seizure warrants are those that identify the financial account, communication records, and personal computers and cell phones (for forensic) of the accused. For financial accounts and communication records, a notice must be given to the party after search and seizure.

 

Military prosecutors are the principal of any criminal investigation, and they have the sole authority to terminate the investigation. Therefore, after the preliminary investigation by investigating authorities, the case is sent to the military prosecutor who will conduct additional investigation and legal review of the case, and determine whether to file an indictment against the suspect.

 

If the military prosecutor decides not to prosecute, the complainant or the accuser may file a motion to the High Military Court of Korea for review of the military prosecutor’s decision. The High Military Court of Korea may also order the military prosecutors’ office to prosecute a case.

 

Meanwhile, military prosecutors and military investigative authorities are usually organized under a given unit commanded by general officers. It is not necessarily the case today that military prosecutors’ offices are located at the units where the military courts sit. Therefore, military prosecutors at a lower echelon (e.g. division) may have to prosecute and conduct a trial at a military court established at a higher echelon (e.g. corps).

     

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