Right to Criminal Trial of a Civilian who Damaged Facility for Military Use and Combat

[25-2(B) KCCR 338, 2012Hun-Ga10, November 28, 2013]

In this case, the Constitutional Court of Korea held unconstitutional the part in Article 2(1)(a) of the former Military Court Act that subjects a civilian to jurisdiction of the military court in times of peace when emergency martial law is not declared, where the civilian commits, among crimes prescribed in Article 1(4)(d) of the Military Criminal Act, the crime of damaging ‘facility for combat’ under Article 69 of the former Military Criminal Act.

Background of the Case

1.The petitioner requesting constitutional review was indicted on charges of damaging a facility for military use within the military base and installation protection zone when he removed a part of the anti-tank protective wall without permission, knowing that the wall is a facility for combat and for military use in the military base and installation protection zone.

2. The petitioner, as a civilian who is neither a soldier nor a civilian worker in the military, was tried by the military court on all charges, because the crime of violating Article 69 of the Military Criminal Act, among the charges, fell under the jurisdiction of the military court.

3. The petitioner asked the Supreme Court to submit a request to the Constitutional Court for constitutional review of the statutory provision that mandates the petitioner, who is not a soldier or a civilian worker in the military, to be tried by the military court. The Supreme Court granted the motion and submitted the request for constitutional review on March 15, 2012.

Provision at Issue

The subject matter of review in this case is whether the part in Article 2(1)(a) of the former Military Court Act that refers to its application to the civilian who committed, among crimes prescribed in Article 1(4)(d) of the Military Criminal Act, the crime of damaging facility for combat under Article 69 of the former Military Criminal Act (hereinafter the “Provision”), violates the Constitution. The contents of the provision are as follows.

Former Military Court Act (amended as Act No. 3993 on December 4, 1987, but before revised as Act No. 9841 on December 29, 2009)

Article 2 (Personal Jurisdiction) (1) Military courts shall have jurisdiction over offenses committed by any of the following persons:

a. Persons prescribed in Article 1(1) through (4) of the Military Criminal Act;

Related Provisions

Former Military Criminal Act (amended as Act No. 3443 on April 17, 1981,but before revised as Act No. 9820 on November 2, 2009)

Article 1 (Persons subject to Application of this Act)

(3) Regarding any of the following persons, this Act shall apply to them as military persons. (subparagraphs omitted)

(4)Regarding Korean nationalsor foreignerswho perpetrate a crime specified in any of the following subparagraphs, this Act shall apply to them as military persons:

d.A crime under any provision of Articles 66 through 71;

Article 66 (Arson to Military Installations, etc.) (1) A person who damages a military factory, ship, aircraft, ora facility,train, tram, automobile, or bridgefor combatby setting fire shall be punished by penalty of death or imprisonment with prison labor for life or for not less than ten years.

Article 69 (Destruction of Military Installations, etc.) A person who damages, or impairs the utility of,goods specified in Article 66or a railroad, an electric cable, or other installations or goods for military use shall be punished by imprisonment with prison labor for life or for not less than two years.

Summary of the Decision

1.Jurisdiction over Korean nationals who damaged ‘facility for combat’ under Article 69 of the former Military Criminal Act

According to the Provision, the military court has personal jurisdiction over a Korean national who damaged ‘facility for combat’ under Article 69 of the former Military Criminal Act.

A ‘facility for combat’ under Article 69 of the former Military Criminal Act, however, is always a facility that is directly used for military purposes, which constitutes a ‘military installation’ under the Protection of Military Bases and Installations Act.

A civilian who is neither soldier nor a civilian worker in the military (hereinafter, “civilian”) is thus subjected to a trial by the military court under the Provision even when no emergency martial law is declared, if the civilian has allegedly caused damages on a ‘military installation’ constituting a ‘facility for combat.’

2. ‘Military articles’ under Article 27(2) of the Constitution

Article 27(2) of the Constitution, which provides for the military court to exercise jurisdiction over civilians in times of peace, does not include a crime involving military installations.

Under the former Constitution, Article 26(2) which regulated crimes

regarding military articles and crimes regarding military installations separately, the term ‘military articles’ clearly did not include ‘military installations.’ The same term ‘military articles’ was used in both the former and the current constitutional provisions that set forth the same regulations. But when the current Constitution was amended it clearly intended to exclude jurisdiction of the military court over civilians who commit crimes related to military installation. Also Article 27(2) of the Constitution that stipulates the extent of jurisdiction of the military court over civilians should be narrowly interpreted. Considering these facts, it would only comport with the Constitution if the term ‘military articles’ under Article 27(2) of the current Constitution is interpreted not to include ‘military installations.’

3. Conclusion

Therefore, the Provision, which forces civilians who allegedly damaged a ‘facility for combat’ among ‘military installations’ to be always tried by the military court, violates Article 27(2) of the Constitution, which excludes civilians who commit crimes related to military installations from the jurisdiction of the military court with exception when emergency martial law is proclaimed. It also infringes on the civilians' right to be tried by judges established by the Constitution and the law.

Concurring Opinion of Two Justices

1. Because the term ‘military articles’ under Article 27(2) of the Constitution broadly refers to ‘any items that are or can be used for military purpose’, it should include ‘military installations’ regardless of whether it is movable or immovable. The current Constitution can be understood as a revision to avoid repetition in the former Constitution, for ‘military articles’ naturally include ‘military installations.’ Therefore, a ‘facility for combat’ under the Provision also falls within the meaning of military articles under Article 27(2) of the Constitution.

2. Article 27(2) of the Constitution narrowly grants jurisdiction to the military court only in cases ‘prescribed by law’ among crimes involving ‘important’ military articles. It does not subject civilians who have committed crimes involving all military articles to trial by the military court in times of peace.

However, the Provision forces any civilians who allegedly damaged ‘facility for combat’ in times of peace, regardless of its military importance, to be tried by the military court. Thus the Provision fails to limit the scope to crimes, by type and content, involving important military articles that only by subjecting such crimes to trial by the military court would satisfy special circumstances to preserve the organizations and functions of the military. Therefore, the Provision, in violation of the principle against excessive restriction, infringes on the peoples' right to be tried in an ordinary court, not a military court.