Case on the Non-Prosecution of the December 12 Incident

[7-1 KCCR 15, 94Hun-Ma246, January 20, 1995]

A. Background of the Case

In this case, the Court dismissed in part and rejected in part a constitutional complaint challenging the Public Prosecutor's Office's decision not to prosecute Chun Doo-Hwan, Roh Tae-Woo, and other members of the military junta for their involvement in the December 12 Incident. In the incident, after the assassination of President Park Cheong-Hee by Kim Chae-Kyu, the then director of the Korean Central Intelligence Agency, which left a vacuum in the executive power on October 26, 1979, the new military power arrested Martial Law Commander-in-chief Chung Sung-Hwa and other military leaders, took control of the military, and practically took over control of the state.

After the December 12 Incident, Chun Doo-Hwan served as the president of the 5th Republic for seven years, five months and twenty-four days from September 1, 1980, to February 24, 1988. Roh Tae-Woo succeeded him immediately and served as the president of the 6th Republic for five years until February 24, 1993. The Kim Yeong-Sam government, which took office in February 1993, described the December 12 Incident as a military coup d'etat but allowed that the past events must be left to be judged by history. After the main actors of the incident left power, thirty-two victims including Chung Seung-Hwa filed a complaint accusing thirty-two persons including Chun Doo-Hwan and Roh Tae-Woo of mutiny and insurrection on July 29, 1993.

The Seoul District Public Prosecutor's Office (hereafter "the Prosecutor's Office") made a decision not to prosecute eight complaints and reports, including the above complaint, on October 29, 1994. On the charge of insurrection, the Prosecutor's Office found no suspicion because the new military junta took control only of the military, leaving intact the constitutional institutions such as the President and the Prime Minister, and did not conspire to disrupt the national constitutional order. On the charge of mutiny, it did find sufficient facts for a finding of suspicion but suspended prosecution in consideration of various extenuating circumstances.

The complainants appealed and re-appealed the decisions of the Prosecutor's Office, and when they were all denied, filed a constitutional complaint on November 24, 1994.

B. Summary of the Decision

The Court first considered whether the period of prescription for public prosecution for the charge of insurrection was suspended during the presidents' tenure, and dismissed the complaint relating to that charge of insurrection, finding that the prescription period had expired. The Court then found that the rest of the complaint satisfied the legal prerequisites for review but denied relief on the grounds that the prosecutor's decision was not arbitrary, for the following reasons.

Article 84 of the Constitution stipulates, "The President shall not be charged with a criminal offense during his tenure of office except for insurrection or treason." Since a President can be prosecuted during his term for insurrection, the prescription for public prosecution is not suspended. However, the Constitution does not allow for prosecution in the case of military revolt, unlike insurrection or treason, which means the relevant period of prescription for public prosecution is suspended while the President is in office. This is because the Constitution only seeks to allow the President to perform his duties smoothly while in office by barring criminal prosecution and does not grant the President personal immunity for his criminal acts. If the prescription for public prosecution is not suspended during the term of office, the President would benefit from the expiration of the prescription for most crimes committed during or before his term, which would contravene justice and fairness.

As for the charge of insurrection, since the prescription for public prosecution expired on December 11, 1994, the constitutional complaint on the non-prosecution of that charge is nonjusticiable for lacking legally protectable interests.

However, the period of prescription for public prosecution on mutiny under the Military Criminal Act against the accused Chun Doo-Hwan was suspended during his term of presidency for seven years five months and twenty-four days, and thus has not expired; therefore, the constitutional complaint on the non-prosecution in that respect has met the legal prerequisites.

As to the Prosecutor's Office's suspension of prosecution on mutiny, the accused used military force and mobilized troops illegally to take over military command, causing casualties. Such insubordination frustrated and humiliated the people of the nation, and left stains of distortion and regression in our constitutional history. The accused neither admitted nor apologized for their wrongdoings to the complainants, the direct victims, or to the people, who were

ultimately harmed by their actions. These facts support prosecution. However, it cannot be denied that the suspects have led the country in pivotal roles, two of them as presidents, and the others as president’s aides or assemblypersons for over ten years. The order established during that time undoubtedly became an integral part of our history and formed the foundation of the present political, economic, and social order. The key player, Chun Doo-Hwan, has already retired from office, and Roh Tae-Woo was elected by the people themselves. The crimes were also dealt with once through the so-called “Fifth Republic Corruption Hearing” at the National Assembly. These facts justify the suspension of prosecution.

Balancing between the two countervailing set of facts, we do not find the Prosecution's decision to be arbitrary.

However, Justices Kim Moon-Hee and Hwang Do-Yun dissented, arguing that Article 84 of the Constitution is not an explicit provision suspending the period of prescription for public prosecution, and that its running against the crimes committed by the president should not be suspended during the presidential term. Justices Cho Seung-Hyung and Koh Joong-Suk also dissented, arguing that the decision of the Prosecutor's Office to suspend prosecution goes beyond the rational scope of the prosecutor’s discretion, and should be cancelled.

C.Significance of the Decision

The Court was asked to decide this case fourteen years after the December 12 Incident happened, during which the new military junta took power, ruled the country and then stepped down.

The decision of the Court received mixed reviews from people with different interests in it. However, the holding that the prescription for public prosecution is suspended while the president is in office for crimes other than insurrection or treason has great significance from the perspective of the rule of law.

The decision implied that the period of prescription for public prosecution for mutiny, etc. will expire for the two former presidents, Chun Doo-Hwan and Roh Tae-Woo, around the year of 2002, leaving room for further legal battles. It led to the Court’s decision on non-prosecution decisions on the May 18 Incident; prompted the enactment of the Special Act on the May 18 Democratization Movement, etc.; and influenced the Court's decision on its constitutionality.