In a case where a military court has jurisdiction or other jurisdiction over a general citizen who committed a crime falling under any subparagraph of Article 1(4) of the Military Criminal Act (a specific military crime), whether a military court has jurisdiction over a previous or subsequent general crime (negative)

Articles 5(2), 27(1) and (2), and 110 of the Constitution of the Republic of Korea; Article 37 of the Criminal Act; Article 1 of the Military Criminal Act; Article 2 subparag. 1 and 13 of the Military Secret Protection Act; Article 2(1)1 and (2) and 3(2) of the Military Court Act

Supreme Court en banc Order 2016Hu318 Decided June 16, 2016 (Gong2016Ha, 1069)

Defendant 1 and one other

Defendants and Military Prosecutors

Law Firm Tae-il et al.

High Court for Armed Forces Decision 2015No57 Decided March 29, 2016

The part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the High Court for Armed Forces. All of the appeals by Defendant 2 and the appeals by the military prosecutor against Defendant 2 are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The judgment on the part concerning Defendant 1 among the judgment below

A. As to the grounds of appeal by the military prosecutor on the violation of the Military Secret Protection Act

For reasons indicated in its holding, the lower court did not recognize the establishment of a co-principal on the grounds that it was insufficient to recognize that Defendant 1 had functional control over Nonindicted 1’s leakage of military secrets. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on co-principal

B. As to Defendant 1’s ground of appeal on aiding and abetting violation of the Military Secret Protection Act

(1) On the grounds indicated in its reasoning, the lower court determined that Defendant 1 attempted to divulge Nonindicted 1’s military secrets to Nonindicted 1’s underground and fourth floor plans (hereinafter “design drawings of this case”) of the building for the Joint Chiefs of Staff newly-established Joint Chiefs of Staff (hereinafter “instant Joint Chiefs of Staff”) that were expected to be disclosed to Nonindicted 2’s Rocopi, which did not receive confidential treatment, but aids and abets Nonindicted 1’s leakage of military secrets by approving or impliedly allowing Nonindicted 2’s participation in the non-official business. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the intent of aiding and abetting

(2) Although Defendant 1’s design drawings of this case do not constitute military secrets as prescribed by the Military Secret Protection Act, the court below found Defendant 1 guilty of aiding and abetting the violation of the Military Secret Protection Act, without failing to exhaust all necessary deliberations, and asserts to the effect that there were errors by misapprehending the legal principles. However, this is not legitimate grounds of appeal as it asserted by Defendant 1 as grounds of appeal in the court below within the submission period of the grounds of appeal, or that the court below did not ex officio consider Defendant 1 as the subject of judgment

C. Ex officio determination

The judgment of the court below is ex officio prior to determining the grounds of appeal by the military prosecutor and Defendant 1 on the part of violation of the Act on the Interference with Bidding, Acceptance of Bribery, and Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”).

(1) Article 27 of the Constitution provides that all citizens shall have the right to a trial under the law by a judge as stipulated by the Constitution and the law (Paragraph (1)), and that citizens, other than soldiers or civilian employees, shall not be tried by a military court, except where the law is prescribed among crimes concerning military secrets, sentrys, sentrys, food supply, prisoners of war, and military supplies, and where emergency martial law is declared within the territory of the Republic of Korea (Paragraph (2)). This means that all citizens are entitled to a trial by a judge appointed in accordance with the qualifications and procedures prescribed by the Constitution and the law, and furthermore, citizens, other than military personnel or civilian employees (hereinafter “general citizens”), who are not military personnel or civilian employees, have the right not to be tried by a military court, except as provided by the Constitution and the law.

Meanwhile, Article 110 of the Constitution provides that a military court may be established as a special source to have jurisdiction over military trials (Paragraph 1), the Supreme Court shall have jurisdiction over the final appeal of a military court (Paragraph 2), and the organization and authority of a military court and the qualification of a judge shall be determined by Act (Paragraph 3). As such, the establishment of a military court directly in the Constitution is an organization whose mission is to ensure national security and to carry out a decent duty of national defense (Paragraph 2 of Article 5 of the Constitution of the Republic of Korea), and it is necessary for the Republic of Korea to promptly hold a trial anywhere in light of the characteristics of military duties in which the armed forces live in a military base against a collective war at ordinary times, and the military court system needs to be organized and operated in advance at ordinary times in order to function properly in wartime, and Korea is divided into South Korea and North Korea, and it is determined by the resolution of the people, who are sovereigns, to have taken into account the situation of military sharply.

According to the delegation of Article 110 of the Constitution, Article 2(1)1 of the Military Court Act provides that the Military Court shall exercise jurisdiction over a person to whom the Military Criminal Act is applicable, and Article 1 of the Military Criminal Act applies to “military personnel” (paragraphs (1) and (2)); Article 1 of the Military Criminal Act provides that a military court shall apply the Military Criminal Act to a person who was called for military personnel and is in reserve service, supplementary service, etc. and served as an officer candidate, etc. (Article 1(4) of the Military Criminal Act; and Article 1(4) of the Military Criminal Act (hereinafter “specific military crime”; and Article 2(2) of the Military Court Act provides that a military court shall have jurisdiction over a person who committed any other crime under Article 3(1)1 of the Military Court Act, as well as a person who committed any of the above crimes (Article 3(2) of the Military Court Act). Furthermore, Article 2(2) of the Military Court Act provides that a military court has jurisdiction over a person who committed any of the above crimes (Article 31).

In light of the contents and purport of Article 27(1) and (2) of the Constitution, the constitutional spirit of Article 110 of the Constitution, the purport of establishing a military court as a special source, and the content and purport of the relevant provisions of the Military Court Act and the Military Criminal Act, even if a military court has jurisdiction or other jurisdiction over a specific military crime against the general public, it is limited to such specific military crime. Thus, inasmuch as a general public has jurisdiction or jurisdiction over other general crimes committed before or after the former part of Article 37 of the Criminal Act, it cannot be deemed that a general public has jurisdiction over a specific military crime. Therefore, in cases where a specific military crime and other general crimes among several crimes committed by a general citizen are charged for a single case inasmuch as a military court has exclusive jurisdiction over such crimes, the general court cannot exercise jurisdiction over such crimes, on the contrary, since a general court has jurisdiction over such other general crimes, the military court cannot exercise jurisdiction over such case without any legal basis. In such cases, if a court does not exercise jurisdiction over the first instance of a public prosecution, the court cannot have jurisdiction over the entire Supreme Court.

(2) Of the facts charged against Defendant 1, the charge of obstruction of tender, acceptance of bribe, and violation of the Specific Crimes Aggravated Punishment Act (Bribery) does not constitute a specific military crime, and there is no provision that a military court has jurisdiction over such crime, and thus, constitutes a general crime under the jurisdiction of a general court.

(3) According to the records, the following facts are revealed. ① On August 11, 2014, the military prosecutor brought a public prosecution against Defendant 1, who is a civilian, for the violation of the Military Secret Protection Act, interference with bidding, acceptance of bribe, and violation of the Specific Crimes Aggravated Punishment Act (Bribery). ② The general military court of the Ministry of National Defense, as the first instance court, found Defendant 1 guilty of aiding and abetting the violation of the Military Secret Protection Act and interference with bidding against Defendant 1 on January 22, 2015, and sentenced Defendant 1 to a suspended sentence of three years on the ground that each crime is in a concurrent relationship under the former part of Article 37 of the Criminal Act, and sentenced Defendant 1 to a suspended sentence of three years on the ground that each crime is in a concurrent relationship under the former part of Article 37 of the Criminal Act, and found Defendant 1 not guilty of the remainder of the charges. ③ On March 29, 2016, the military prosecutor and Defendant 1 appealed the appeal of this case

(4) Examining these facts in light of the aforementioned legal principles, the first instance court or the lower court, which is the military court, may not exercise jurisdiction over the charge of violating the Military Secret Protection Act, among the charges against Defendant 1, against the general public. However, among the facts charged in the instant case, the general court has jurisdiction over the obstruction of bidding by a general criminal, acceptance of a bribe, and violation of the Specific Crimes Aggravated Punishment Act (Bribery) among the facts charged in the instant case, only the general court has jurisdiction over the general criminal, and does not have jurisdiction over the status under the Military Court Act or other jurisdiction. Therefore, even if the part was prosecuted for concurrent crimes together with the remaining facts charged under jurisdiction of the military court

(5) Nevertheless, the lower court upheld the first instance judgment which deliberated on the charge of interference with bidding, acceptance of bribe, and violation of the Specific Crimes Aggravated Punishment Act among the facts charged in the instant case on the premise that the military court has jurisdiction. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of jurisdiction of the military court in cases where a specific military crime and general crime are prosecuted as concurrent crimes, thereby adversely affecting the conclusion of the judgment.

D. Scope of reversal

Of the lower judgment, the part of the lower judgment on bid interference, acceptance of bribe, and violation of the Specific Crimes Aggravated Punishment Act (Bribery) should be reversed for the same reason. However, the lower court upheld the first instance judgment that rendered a single sentence on the ground that the part of bid interference and aiding and abetting violation of the Military Secret Protection Act, which found guilty, constitute concurrent crimes under the former part of Article 37 of the Criminal

2. The judgment on the part concerning Defendant 2 among the judgment below

A. As to the assertion of misapprehension of the legal principles by the military prosecutor

For the reasons indicated in its holding, the lower court did not recognize the establishment of a co-principal on the grounds that it was insufficient to recognize that Defendant 2 had functional control over Nonindicted 1’s act of divulging secrets. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

B. As to the ground of appeal disputing Defendant 2’s establishment of aiding and abetting

For the following reasons, the lower court convicted Defendant 2 of charges of aiding and abetting the violation of the Military Secret Protection Act. (1) The instant design drawings constitute military secrets such as military-related documents, drawings, electronic records, and other special media records or articles that are not known to the general public and are likely to cause a clear danger to the national security if leaked. (2) Defendant 2, who did not receive the authorization of confidentiality on the instant design drawings, has a duty to prevent Nonindicted 3’s employees, who did not receive the authorization of confidentiality, from performing the work related to the instant design drawings, but, at the same time, aids and abets the divulgence of the instant design drawings, which are military secrets.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on aiding and abetting and aiding

C. As to the assertion of unreasonable sentencing by the military prosecutor and defendant 2

The military prosecutor asserts to the effect that the lower court’s sentence against Defendant 2 is too unjustifiable, and Defendant 2 asserts to the effect that the sentence of the lower court is too unreasonable. However, according to Article 442 Subparag. 7 of the Military Court Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is imposed, an appeal on the ground of unfair sentencing is allowed. Thus, in this case where Defendant 2 was sentenced to a more minor sentence, it is not a legitimate ground for

3. Conclusion

Of the judgment of the court below, the part on Defendant 1 against Defendant 1 is reversed without examining the remaining grounds of appeal, and that part of the case is remanded to the court below for a new trial and determination. The appeal against Defendant 2 and Defendant 2 by the military prosecutor is dismissed in its entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)