High Court Armed Forces Republic of Korea

   Ⅰ . General Military Courts

The trial procedure of military courts is similar to the civilian court, except for the Convening Authority and lay judges. Once a case is prosecuted to the military court, the accused receives the notice. The court gives the defendant a chance to submit a written opinion about the prosecuted case, from which the court organizes the issues, questions and proceeding schedules for the trial while the parties prepare the pleadings and arguments.

 

Military trials take place at courtrooms located in a given military unit and is open to the public. The trial proceedings are: declaring the commencement of a trial, identification questions, military prosecutor’s summary statement of the facts charged, answer by the defendant (or by his/her counsel), examination of evidence to prove the facts charged, military prosecutor’s statement of opinion on application of law and demanding of a sentence, defense counsel’s argument, and final statement of the criminal defendant.

 

To protect the criminal defendant’s interests, the trial procedure guarantees the criminal defendant’s right to make a statement about the case with the judges’ approval. For sexual violence crimes, a separate special attorney is designated to support the victim who can also make a statement at the trial on behalf of the victim. The balance between the counsel’s right to cross-examine and the protecting victim’s rights is compromised by the use of video conference for witness examinations.

 

Once the examination of facts is completed, the judges (including lay judge(s), where applicable) determines whether the defendant is guilty or not, and, if guilty, what is the appropriate sentence. To be found guilty, criminal facts charged must be proved to the extent that there is no reasonable doubt. The judges discuss the contents of the ruling and decide on a majority opinion, regardless of the type of sentence imposed. The contents of discussion is not to be disclosed.

 

Possible sentences include death penalty, imprisonment, with or without labor, for an indefinite term or for a set term, deprivation of qualification, suspension of qualification, and a fine. The term of imprisonment is between one (1) month to thirty (30) years, and the aggravated sentence must be within fifty (50) years total. Military persons are incarcerated in military correctional institutions. A death penalty is executed by a firing squad by the order of the Minister of National Defense inside military correctional institutions.

A career military person found guilty is usually separated from the military. A sentence to suspend imprisonment (with or without labor) or higher degree of punishment is a cause of mandatory separation from the military. A sentence to suspend a pronouncement of punishment and a fine are subject to an administrative optional separation procedure to determine whether he/she is unfit for active duty. However, simpler crimes such as traffic incidents and offenses involving violence that are prosecuted as a summary judgment with fines are not subject to an administrative separation procedure. A military person removed from military register due to conviction retains his/her rank at the time of removal, but he/she is not transferred to the reserve component. Also, if the defendant was entitled to pension and was sentenced to suspension of imprisonment (with or without labor) or higher, the amount of pension receivable is reduced by half.

 

Convicted conscripted enlisted soldiers serving their mandatory duty may return to the unit where he was serving, except for sentence to imprisonment. Upon return, a procedure commences to determine whether he is unfit for active duty. If the soldiers were detained during the course of the trial, the period of his detainment will be included to the total term of his required service.

 

Based on 2015 statistics, there were 3,300 trials at general military courts. Among them were 900 cases of traffic incidents and driving under the influence (“DUI”) of alcohol cases, 500 cases of offenses involving violence, 450 cases of sexual assault, and 130 cases of desertion from military service. Simpler cases such as traffic incidents, DUIs, and offenses involving violence are proceeded to summary judgment. With the increase of a number of female military personnel and the increased awareness of sexual self-determination, the number of reports of sexual assault cases are increasing. Per “Zero Tolerance Policy” of the Ministry of National Defense, sexual assault cases are strictly disposed.

 

    Ⅱ . The High Military Court of Korea

Either a defendant or a military prosecutor may appeal the judgment of a general military court to the High Military Court of Korea. The reason for appeal may be the appropriateness of the guilty or not-guilty verdict and/or the appropriateness of the degree of sentence. A motion to appeal may be filed at a general military court where the sentence was imposed within seven (7) days after either the date of sentence or the service of a confirmatory letter from the Convening Authority regarding the judgment, where applicable.

 

If only the defendant appeals, the High Military Court of Korea cannot impose higher degree of sentence than what was determined at the general military court. The appellate court, just like the lower court, has the authority to examine the question of law, fact-finding and appropriateness of the sentence. This differs from the Supreme Court of Korea where only the question of law is examined.

 

About 500 cases are annually submitted for appeal at the High Military Court of Korea. The trial proceedings are not much different from those of the lower court. The appellate court dismisses the case if the lower court’s decision was appropriate. If not, the court has the option to either reverse and remand the case or, if it determines that it can independently adjudicate the case through examinations, it may reach to its own conclusion.

 

    Ⅲ . The Supreme Court of Korea

If anyone is not satisfied with the appellate’s decision, he/she may appeal to the Supreme Court of Korea. While both military prosecutors and defendants have such right, the Court can only examine the question of law. There are less than 100 cases annually submitted to the Supreme Court for review.

 

There are fourteen (14) justices at the Supreme Court of Korea. Most cases from the military courts are reviewed by four(4)-judge bench. The Court reviews every appealed case without discretion, meaning, there is no preliminary review of the case to determine whether the case is qualified for a Supreme Court’s decision. At the Supreme Court, except for special cases, cases are generally examined through submission and review of documents (“known as paper trials”) without oral arguments or public hearings.

 

 

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