2. Morning Calm, KOREA Greetings!

3. www.hcaf.mnd.mil History of Korean Military Justice Organization Introduction of Current Military Justice System Jurisdiction of Military Court over Civilians

5. www.hcaf.mnd.mil 5 Legal Basis of Military Justice System (1/2) Constitution (Amended in 1987) Article 27 (2) Citizens who are not on active military service… shall not be tried by Military Court...except in case of crimes as prescribed. Article 110 (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.

6. www.hcaf.mnd.mil 6 Legal Basis of Military Justice System (2/2) Military Court Act Convening authority Organization of military courts & prosecutors’ office Criminal procedure Military Criminal Act Special Crimes (and punishment) applied to military personnel Military Criminal Administration Act Detention & penitentiary facilities

7. www.hcaf.mnd.mil 7 Characteristics of Military justice System (1/2) 1. Separated Jurisdiction from civilian courts 3. Special Measure in Wartime or National Emergency 2. Exclusive (NOT concurrent) jurisdiction over Military personnel Civilians who committed certain crimes during martial law is in effect Civilians who committed certain crimes prescribed by law

8. www.hcaf.mnd.mil 8 Characteristics of Military justice System (2/2) Democratic Aspects: Judicial Panel Committee appointed by Convening Authority (TOP-DOWN WAY), Review and Sentence reduction by Convening Authority Independency and Professional Aspects : Military courts belong to the MND Organization, Military Judge and Prosecutor's Cross Appointment & Position System, lay officer (Infantry officer) in the panel of the Court

9. www.hcaf.mnd.mil 9 THE PRINCIPLES OF THE COURT ORGANIZATION AND OPERATION THE PRINCIPLES OF THE COURT' CONSTITUTION AND OPERATION Independency Principle Democracy Principle Professionality Principle Military Court vs Constitutional Issue

10. www.hcaf.mnd.mil 10 The Cause of constitutional challenge USA C-M does not belong to the Judicial branch, according to the Article 3 of the U.S. Constitution (Dynes v Hoover 61 US 1859) USA C-M is based on Article 1 of the U.S. Constitution USA C-M is established under UCMJ In contrast, Korean military court is based on Korean Constitution Chapter 5 (Judicial Branch), Article 110 why has the Korean C-M been receiving the constitutional challenge?

11. www.hcaf.mnd.mil 11 The Meaning of Special Court, Article 110 of Korean Constitution Sentence by the military court may not be appealed at the Supreme Court When? Judge and lay officer cannot be guaranteed by Constitution and Statute Fundamental Solution: replacement of Article 110 as in the US system (from judicial branch to legislature)

12. www.hcaf.mnd.mil 12 Judgment of Constitutional Court Korean Const. Court made a decision about constitutionality of the Military Court In 1996, Korean Const. Court determined that the Operation of military court is permissible and constitutional.

13. www.hcaf.mnd.mil 13 Countries with C-M vs without C-M Distinction (total 42 countries) CountriesRemark 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

14. www.hcaf.mnd.mil 14 Promptly avoid negative effects of military crimes on the barracks Jurisdiction change necessary for speedy trial (according to Korean military dispatch such as UN Peace-Keeping Operation) The Necessity of the Military Justice System in Korea Establishing Military Disciplines & Commander Leadership considering characteristics of Military Missions such as Military Operations

15. www.hcaf.mnd.mil 15 History of Military Justice System (1/2) It allowed the Supreme Court to hear appeals of the C-M judgments 1954. 11 1945. 8 At the end of WWII, the U.S C-M system was adopted Three types of C-M : - General, Special, and Summary No Appeals Constitutional amendment recognized C-M as a special court The C-M found its constitutional basis

16. www.hcaf.mnd.mil 16 History of Military Justice System (2/2) Constitutional amendment renamed C-M the Military Court Military Court Act was amended Four appellate military courts merged into one. General military court’s composition changed from one judge & two lay officers to two judges & one lay officer 1987. 101994. 7 1962. 1 Our own Court Martial Act was enacted American C-M system (convening authority) + Civil Law (criminal procedure) Three-Tier Appellate system

17. www.hcaf.mnd.mil 17 Characteristics of Military justice System Organization part : Adopting U.C.M.J. Convening Authority, lay officer (panel) Criminal Process part : Adopting Continental Law System Since 1962

18. www.hcaf.mnd.mil 18 Military Criminal Procedure Supreme Court Chamber (final judgment) Court of Military Appeals Chamber Reappeal General Military Court Chamber Appeal Prosecutors’ Office Military Prosecutor indict Investigation Military Police (general) Defense Security Command (national security) submit JAGC Investigators ※ MP → Prosecution → G-C → CMA → Supreme Court

19. www.hcaf.mnd.mil 19 Final Disposal of Military Prosecutor Various Kinds of Contents of Final Disposal Who has authority to make the final decision concerning above process? ⇒ Military Prosecutor ⓐ Contents of Final Disposal after Ending of Investigation ⓑ indictment Civil Prosecution Non-indictment Transfer to the C-M jurisdiction Sending the case to Civil Prosecutior suspension of indictment, Acquittal, ⓒ Stay of Prosecution, etc. ※ Military Court Act, Operation of Military Prosecutor Affair Act, Operation of Military Prosecutor Affair Rule, Operation of Military Prosecutor Affair Directive 1 months

20. www.hcaf.mnd.mil 20 Military Criminal Procedure The Notification for Commander Who and To Whom? Military Prosecutor & Commander Notification for what? Start-up of investigation & Final Disposal by Prosecutor (Military Proscution enforcement regulations article 70) ⇒ To consider characteristics and establish Command Leadership of the military

21. www.hcaf.mnd.mil 21 Military Criminal Procedure (arrest · confinement) - Arrest by Warrant - Arrest without Warrant - Arrest of a suspect caught in action - Arrest by Warrant - Arrest without Warrant - Arrest of a suspect caught in action Arrest ⓐ Request of Issuance of Arrest Warrant within 48 Hours from the Arrest ⓐ Request of Issuance of Arrest Warrant within 48 Hours from the Arrest DismissalDismissalReleaseRelease - Confinement by Confinement Warrant without Arrest Confinement Approval of Commander Judicial Review of Arrest Judicial Review of Arrest Issuance of Arrest Warrant Issuance Confinement of Suspect Confinement Judicial Review of Confinement Judicial Review of Confinement DismissalDismissal ReleaseRelease Release on Bail ConfinementTrialConfinementTrial Non-ConfinementTrialNon-ConfinementTrial Ⓑ Rejection of Warrant Request Ⓑ Rejection of Warrant Request Release of Suspect SuspectNon-ConfinementTrialNon-ConfinementTrial Preliminary Petition for Arrest Warrant Preliminary Petition for Arrest Warrant Judicial Review of Warrant Judicial Review of Warrant

22. www.hcaf.mnd.mil 22 The Comparison of confinement between Korea & U.S.A In The Military Justice

23. www.hcaf.mnd.mil 23 A sort & Official authority of investigative agency

24. www.hcaf.mnd.mil 24 A Sort of Military Police & Scope of Investigative Authority

25. www.hcaf.mnd.mil 25 Military Criminal Procedure (Military Police and Military Prosecutor) (1/2) Article 45 of Military Court Act: Military police shall, in investigating a crime, must obey to the orders of superiors in direct line of order Prosecutor's right to command investigation of military police defined: Arrest(Article 238) / Commanding the execution of the writ of arrest and the writ of search and seizure(Article 119 and 156 of Military Court Act) Inspection of the detaining place(Article 230) Inquest of body killed by accidental cause(Article 264(4)) and more

26. www.hcaf.mnd.mil 26 Military Criminal Procedure (Military Police and Military Prosecutor) (2/2) Flow Chart of Notification of Transferred Cases In case of booking a case or receiving a case transferred from civil police, military police must notify military prosecutor of such case within 72 hours Civil Police Military Police Military Prosecutor High Prosecutor's Office Transfer Notification of case(72 hrs) Quarterly Report

27. www.hcaf.mnd.mil 27 Power to Appoint a Prosecutor under the Military Justice System Appointment of a Prosecutor Prosecutors of Army, Navy and Air Force Headquarters are appointed among the servicing Judge Advocates by the respective Chief of Staff, (Article 41 of Military Court Act) Prosecutors of Ministry of National Defense Prosecutor's Office is appointed by the Minister of Defense(Qualification of Article 41(1) of Military Court Act) ※ 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)

28. www.hcaf.mnd.mil 28 Notable Feature of Investigation Structure under the Military Justice System Military Investigation Agency Military Police → Military Prosecutor Military Prosecutor has both investigatory power and prosecutor power ☞ US Military: Military Prosecutor only has prosecutor power Prosecutor has exclusive power of indictment - exclusive decision to make indictment ☞ US Military: Commander of the Jurisdiction has the power to make referral Type of Non-Indictment (Acquittal, Suspension of Indictment, No Criminality, No Prosecutor Jurisdiction) Commander may participate in the investigation as a means to command/supervise the prosecutor

29. www.hcaf.mnd.mil 29 Appointer of Military Judge under the Military Justice System Appointment of Military Judge Appointment of military judge of MND shall be appointed by minister of defense (qualification of Article 23(1) of Military Court Act) Military Judge of each service shall be appointed among servicing Judge Advocates by the Chief of Staff (Article 23(1) of Military Court Act)

30. www.hcaf.mnd.mil 30 Trial Procedure of Military Court (1/3) Commencement - Confirmation of presence of defendant and attorney Right to remain silence notified Identification of defendant by asking the defendant's name, resident registration number(serial number), age, post, registered residence(domicile) and profession Identification Interrogation Opening Process : Opening statement of defendant and attorney : plead of guilty or not guilty, facts in favor of the defendant Opening statement of prosecutor : criminal fact, name of crime, applicable statute, gist of indictment

31. www.hcaf.mnd.mil 31 Trial Procedure of Military Court (2/4) Evidence Inspection: Submission of evidence list by prosecutor - defendant's attorney's opinion on the submitted evidence : when in consent, acceptance of evidence and initiate the inspection ; when not in consent, request for witness “ Defendant interrogation is conducted in the order of prosecutor, lawyer and the judge ” Interrogation of Defendant : Upon completion of evidence inspection, an interrogation on issues necessary to support prosecution / in exceptional cases, interrogation may be allowed before the completion of evidence inspection

32. www.hcaf.mnd.mil 32 Trial Procedure of Military Court (3/4) Closing Statement : Statement by prosecutor / statement by attorney and defendant : opinion on overall case and request of criminal sanction : Rebuttal of prosecutor's opinion and closing remarks on the case Sentencing : Explanation on case assessment and recitation of the text of judgment When a party is dissatisfied with the court sentence, appeals period is notified (7 days from receiving the confirmation letter)

33. www.hcaf.mnd.mil 33 Trial Procedure of Military Court (4/4) Limitations present since appeal or change of punishment is not allowed Dismissal of the Trial declared by the chief judge Action by Convening Authority after sentencing (imprisonment, criminal fine)

34. www.hcaf.mnd.mil 34 Power of Convening Authority under Military Justice System Authority vis-a-vis Military Prosecutor Management of military prosecution, general or specific command /supervision on military prosecution(from Article 38 to 42) Authority to approve issuance of writ of arrest requested by prose cutor(Article 238(3)) Right to receive report on criminal investigation (Article 284)

35. www.hcaf.mnd.mil 35 Authority of Convening Officer under Military Justice System Authority vis-a-vis Military Court Authority to manage administration of Military Court(Article 8) Authority to convene Military Court(Articles 24, 25) Authority to confirm the judgment(Article 379) ※ 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

36. www.hcaf.mnd.mil 36 Foundation and development of High Court for the Armed Forces 2001. 10. 23. 2010. 2. 10. 2010. 7. 1. 2000. 7. 1. High Military Court founded High Military Court moved to the new building Electronic trial system convened 10th anniversary of High Military Court Foundation

37. www.hcaf.mnd.mil 37 High Court for the Armed Forces

38. www.hcaf.mnd.mil 38 Duty and Function of High Court for the Armed Forces Duty / Function Trial on appealed cases and other cases that fall under the jurisdiction of High Military Court by statutes Research and study on cases Provision of public defender and legal assistance under Necessary Public Defender System Other Military Justice management and legal administration

39. www.hcaf.mnd.mil 39 Task and Organization of High Court for the Armed Forces General Counsel Division 1 Division 2 Trial Research Division Trial Defense Division Administrative Division MND General Military Court (1) High Court for the Armed forces Army General Military Court (49) Navy General Military Court (14) Air Force General Military Court (19) MND Minister MND Minister Supreme Court

40. www.hcaf.mnd.mil 40 Future Development of Korean Military Justice System Active adoption of the sentencing standard of the Supreme Court('09. 7. / '11. 2) and the sentencing standard of Military Court on pure military criminal Convocation of debate round on sentencing standard by military judge of all divisions (once in every six months) Ethics education for military judge Establishment and application of strict procedure for attorney's work-related visit to military judge

41. www.hcaf.mnd.mil 41 Enhancement of Expertise Separation of Prosecutor's Office and Military Court, and prohibition of exchange of personnel Education by experienced judges of civil courts (e.g. Supreme Court)(once in every six months) Promotion of post arrestment judicial review such as that of the US Expansion of public defender assistance Education of Lay Officer, Military Judge, Court Clerk Facilitation of interchange with foreign military courts Comparative study of foreign military justice system

42. www.hcaf.mnd.mil 42 Promotion of Democratic Trial Process Establishment of peer jury assembled by a body of lay officers who are in the same rank with the defendant (only officers may become lay officers now) Limitation on convening officer's peacetime authority to confirm judgment, as authority to confirm judgment or reduction of sentenced punishment may be unconstitutional Establishment of a bench assembled by drawing by defendant or commander among the pool of lay officers

43. www.hcaf.mnd.mil 43 Promotion of Expedite Trial Process Improvement of trial management for expedite trial process Establishment of Online system directed at promoting considerate operation of trial by military judge and allowing defendant and his families to check trial procedure Expedition of trial by establishment of permanent Lay Officer system ※ Active adoption of preliminary hearing session and concentrated trial

44. www.hcaf.mnd.mil 44