High Court Armed Forces Republic of Korea

. Military Justice System in the Pre-Modern Era

The Joseon Dynasty was a monarchy from the 14th to the 19th century, and it compiled numerous laws and regulations of the kingdom known as Gyeongguk Daejeon . The provisions were to be applied in daily lives of the people and the state, including military affairs.

 

Military commanders commenced and administered military tribunals, but there was no separate organization that resembles today’s court system. They adopted punishments from the Great Ming Code (“ Da Ming Lü ”) of the Chinese Ming Dynasty, which had five (5) major types of punishments: flogging with bamboo strips, flogging with wooden staves, imprisonment with labor, exile, and death penalty, plus add-on punishments. In particular, the Agency for Thieves Arresting known as Podocheong employed flogging as punishment for theft offenses.

 

 

    Ⅱ . The Korean Empire and the Provisional Government

During the reign of the Korean Empire, an army court was established as a department under the ministry of military. The judge panel included one chief judge, three “members of the council” and nine “masters”. With the commence of the Japanese Colonial Period, the army court was abolished in 1910.

 

The Provisional Government of the Republic of Korea was established in 1919 in Shanghai, China, and it stipulated the courts-martial system in its Constitution. According to Article 45 of the Second Revised Constitution of 1927, details about the organization and authority of the civil courts and the courts-martial were to be established through further legislations. Unfortunately, no historical data has been discovered yet to confirm the operation of courts-martial under the provisional government.

 

    Ⅲ . Restoration of Independence and the Early Military Justice System of the Republic of Korea

After termination of the Japanese occupation in August 15, 1945, Korea was subject to the American stratocracy. In 1946, the National Defense Guard was created to take on the national defense mission, and the National Defense Guard Act was followed in 1948 to provide the legal basis.

 

This Act adopted the American military justice system of the time, operating a single-trial system without an appeal. Commanders were the chairman of the courts-martial with power to convene a trial and approve a judgment. The bench was composed of commissioned officers including one legal officer.

 

Through the second amendment of the Constitution of the Republic of Korea in 1954, the constitutional basis was established by including a provision regarding the courts-martial system. Article 83(2) of the 1954 Constitution states, “courts-martial may be held to govern over military trials. However, the Supreme Court will have jurisdiction over certain types of trials designated by the legislation. Courts-martial’s organization and authority, as well as the qualifications of the judges, shall be determined by the legislation.”

    

    Ⅳ . Enactment of the Courts-Martial Act

The Courts-Martial Act was enacted in 1962 on grounds that the U. S. military justice system introduced in Korea conflicted a tradition of civil law legal system similar to Europe, and that the single-trial system without an appeal unconstitutionally infringes a right to be tried.

 

The Courts-Martial Act , consisted of five (5) sections, 526 articles and seven (7) addendums, regulated the courts-martial’s organization and procedures and separated the criminal punishment and the non-judicial (disciplinary) punishments. Also, the single-trial system was replaced with the three-tier system: the general courts-martial established at each unit commanded by general officers, the high courts-martial established at each military service headquarters, and the Supreme Court of Korea.

 

In addition, the Act gave the authority to each Chief of Staff of the military services and the commanders of the units where courts-martial are established to convene the courts-martial, confirm the judgment, and mitigate or exempt the sentence. These general officers are known as the Convening Authority, as will be explained later in more detail. Also, the military prosecutors’ offices were established as if they are departments under the courts-martial.

 

The bench consisted of two (2) lay judges and one (1) legal officer for the general court-martial, and three (3) lay judges and two (2) legal officers for the high court-martial.

    

   Ⅴ . The Revised Military Court Act

In 1987, the Courts-Martial Act was renamed as the Military Court Act in accordance with the 9th amendment of the Constitution of the Republic of Korea. Through this revision, the courts-martial was renamed as the military courts, and legal officers acting as bench members in the courts-martial were titled military judges. It also implemented criminal procedures from the civilian court.

 

With another revision of the Military Court Act in 1994,

One appellate military court was established under the Ministry of National Defense; appellate military courts at each military service  

  headquarter were abolished.

The convening authority’s power to mitigate the sentences could be exercised only at a trial level, instead of both trial and appellate levels.

The judge panel consisted of two (2) military judges and one (1) lay judge for the trial level, and three (3) military judges for the appellate level.

 

. Recent Reform of the Military Justice System

The Military Court Act of 2000 established Army, Navy and Air Force Military Courts under the command of each service Chief of Staff. These ‘Military Courts’ are agencies organizing all military judges of the services so that military judges are subject to the direct command of the service Chiefs of Staff, not the commanding generals of the commands where the courts are established. This reform was intended to enhance the independence of military criminal justice from the chain of command. Further, military prosecutors’ offices were separated from military courts. Trial courts were reestablished in divisional units.

 

In 2016, Korean military faced high public demands to reform the military justice system. Accordingly, the revised Military Court Act is set to be effective in July 2017 with the following changes:

Trial courts in division level units are again abolished;

Lay judge system is now generally abolished, with the exception in cases designated by the convening authority where high-level knowledge      

  and expertise in the field of military is required for sound judgment.

Convening Authority can only mitigate, in exceptional cases, up to one-third of the degree of punishment sentenced to those who committed

  crime in the course of sincere and active performance of duty.

 

하단배경영역