Case on the Non-Prosecution of the May 18 Incident

[7-2 KCCR 697, 95Hun-Ma221 et al., December 15, 1995]

A. Background of the Case

In this case, the Court reviewed a constitutional complaint against the prosecutor's decision not to prosecute the violent suppression of the Gwangju Democratization Movement on May 18, 1980. The Court did not announce its review on the merits because the complainants withdrew the complaint right before the announcement of the final decision, prompting the Court to declare the case closed.

The Seoul District Public Prosecutor's Office made a decision not to prosecute the case filed on May 13, 1994, by the victims who suffered harm from military junta during the May 18 Incident, against twenty four major figures in the military junta including Chun Doo-Hwan, for charges of insurrection, murder for the purpose of insurrection, mutiny, etc.; the case filed on October 19, 1994, by Kim Dae-Jung and others victimized by the fabricated charges of conspiracy for insurrection, against ten persons including Chun Doo-Hwan, for charges of insurrection, attempted murder for the purpose of insurrection, mutiny, etc.; and the case filed by the others against thirty five persons including Chun Doo-Hwan for charges of insurrection, mutiny, etc. Consequently, the complainants filed a constitutional complaint in order to nullify the prosecutor's decision not to prosecute.

B. Process of the Case

Since the non-prosecution decisions were made very close to or after the expiration of the periods of prescription for public prosecution regarding the May 18 Incident, the Court, in a very limited amount of time, not only had to rule on the arbitrariness of the decisions but also had to decide on the complicated penal, constitutional, legal-philosophical problems concerning a successful coup.

During the review, it was revealed that former President Roh Tae Woo was hiding a massive slush fund in his bank accounts. Amid the public controversy on whether the May 18 Incident perpetrators should be prosecuted, the Public Prosecutor's Office arrested Roh on November 16, 1995, on the charge of creating a slush fund, giving further impetus to the demand for a special law that would enable the punishment of parties involved with the May 18 Incident. Just a

few days before the Court was to issue its decision, President Kim Yeong-Sam finally announced the initiative to “set the Korean history right,” and announced his plan to enact a special law. At that point, a draft copy of the Court's decision was leaked to the press before the announcement planned for November 30. It was reported that the Court, while holding that a successful coup is subject to criminal prosecution, calculated the period of prescription for public prosecution to run from President Choi Kyu-Hah's abdication on August 15, 1980 and expire on August 16, 1995. The complainants withdrew their complaints one day before the Court was to announce its decision, over concerns that the Court's proposed decision could spark controversy regarding the proposed Special Law for being retroactive, and therefore, render it unconstitutional.

C. Summary of the Decision

The Constitutional Court declared the case closed upon the complainants' withdrawal, applying Article 239 of the Civil Procedure Act pursuant to Article 40 of the Constitutional Court Act.

Whereas Justices Shin Chang-On, Kim Chin-Woo, Lee Jae-Hwa and Cho Seung-Hyung posited that the Court could proceed to a final ruling even if the complainants had withdrawn.

Justice Shin emphasized the objective function of the constitutional complaint process and opined that the Court should publish the opinion as agreed by the Justices.

Justices Kim Chin-Woo, Lee Jae-Hwa and Cho Seung-Hyung reasoned that, if the complainants withdraw, the case should be closed with respect to its subjective portion, namely giving relief to claims of rights; however, the objective function of the constitutional complaint process demands that it should continue on to a final decision with respect to those issues of which the resolution is vital to defending and upholding the constitutional order. In this case, the question of whether a successful insurrection can be punished calls for a constitutional answer since it affects the fate of this nation and the fundamental rights of the entire public. Thus, they presented an opinion that a final decision is required irrespective of the complainants' withdrawal.

Before the withdrawal, a quorum of the justices had agreed in the deliberation that a successful coup is punishable. The five Justices who presented the majority opinion acquiesced in the publication of the minority opinion of three Justices concerning the part on merits of the complaint, while leaving out the part concerning the expiration of the period of prescription for public prosecution. Thus, the prevailing view in the deliberation room, that a successful coup is punishable, was revealed. Their reasoning is as follows.

The constitutional order, which is the legal interest to be protected by criminal punishment of insurrection under the Criminal Act is one based on people's sovereignty and the basic order of free democracy, not the incumbent power or the constitutional order maintained by such power. In addition, Article 84 of the Constitution, which stipulates, "The President shall not be charged with a criminal offense during his tenure of office except for insurrection or treason," stands as an unequivocal expression of a constitutional resolve that insurrection can be punished at all times regardless of its outcome. Therefore, even if a successful coup makes it practically impossible to punish the perpetrators during their incumbency, they can always be punished whenever the constitutional institutions recover their proper function and thereby regain power to punish them. However, if the insurrection was the means to create a democratic civil state and to restore people's sovereignty that had been previously suppressed and eliminated under a feudal monarchy or dictatorship, it can be justified by the ex ante or ex post consent of the entire public. Therefore, a successful insurrection may remain unpunished under exceptional circumstances where the people have agreed to it through the free expression of their sovereign will.

In this case, the acts of insurrection by the two former Presidents were neither justified by the circumstances nor ratified by the free will of the people. The prosecutor's non- prosecution decision on the grounds that a successful coup is subject to immunity is based upon a misunderstanding of the ideals of the Constitution and the criminal jurisprudence of insurrection, and therefore is unlawful.

D.Significanceof the Decision

In respect of the Court borrowing a minority opinion to disclose the prevailing view in its original deliberation while declaring the case closed, the press assessed that the Court had declared a successful insurrection as punishable while dodging the issue of the expiration of the prescription for public prosecution. By this, the Court was able to preclude the possibility of a similar debate in the future by directly contradicting the Prosecutor’s logic behind the non-prosecution decision (The Hankyoreh, December 16, 1995).