[1] Whether "a person who ordinarily resides in the Republic of Korea" in the civilian component of the United States Armed Forces is subject to the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of

[2] The case holding that where the defendant, who is a civilian of the United States armed forces of the United States of America, stays in the Republic of Korea for more than 10 years at the time of committing the crime, was married to the Republic of Korea to make a family and living in the Republic of Korea, the defendant constitutes "ordinary resident in the Republic of Korea" under "Agreement between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea" under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, and thus,

[3] In the ordinary state of the Korean Peninsula, whether the Republic of Korea can immediately exercise criminal jurisdiction over the military service of the United States Armed Forces (affirmative)

[1] According to Article 1 (a) (main sentence), (b) (main sentence), and Article 22 (4) of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which came into force on February 9, 1967 by Treaty No. 232, as amended on March 29, 2001 by Treaty No. 553), Article 1 (a) (main sentence), (b) (main sentence), and Article 22 (4) of the Agreement, a person ordinarily residing in the Republic of Korea among the civilian armed forces of the United States of America is excluded from the concept of military service to which the said Agreement applies, so there is no room

[2] The case holding that where the defendant, who is a civilian of the United States armed forces of the United States of America, stays in the Republic of Korea for more than 10 years at the time of committing the crime, was married to the Republic of Korea to make a family and live in the Republic of Korea, the defendant constitutes "a person who ordinarily resides in the Republic of Korea" under the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which came into force as Treaty No. 232 of February 9, 1967 and was finally amended by Treaty No. 553 of March 29, 2001), and thus, the provision on criminal jurisdiction over the civilian of the United States armed forces

[3] In the ordinary state of the Korean Peninsula, since the military authorities of the United States of America do not have criminal jurisdiction over the civilian service of the United States Armed Forces, there is no possibility that criminal jurisdiction of the Republic of Korea and criminal jurisdiction of the military authorities of the United States of America are concurrent with regard to crimes committed by the civilian service of the United States Armed Forces. The Republic of Korea may immediately exercise criminal jurisdiction over crimes punishable by the statutes of the Republic of Korea, which are committed by the civilian service of the United States of America under Article 22 (1) (b) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America on Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 as Treaty No. 553 of March 29, 2001, as Treaty

[1] Articles 1 (a) (b) and 22 (4) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea / [2] Articles 1 (a) (b) and 22 (4) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America / [3] Article 22 (1) (b) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea

Defendant

Defendant

Attorney Jin-bok

Suwon District Court Decision 2004No1878 delivered on January 13, 2005

The appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on the assertion on the criminal jurisdiction of the Republic of Korea

(a) Article 1 (a) (main sentence) of the Agreement under Article IV of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 by Treaty No. 232, as amended on March 29, 2001 by Treaty No. 553, the following) provides that "a member of the United States Armed Forces" shall mean a member of the United States Army, Navy, or Air Force in the territory of the Republic of Korea who is on active duty and is on active duty; and (b) the first sentence (a) provides that "a member of the United States Armed Forces" shall not include a person who is a civilian with the nationality of the United States of America and who is ordinarily resident in the Republic of Korea or a person who works or is accompanied by the United States Armed Forces, but shall not be subject to the jurisdiction of the Republic of Korea with respect to the person who is a member of the United States Armed Forces."

According to the above provisions, those who ordinarily reside in the Republic of Korea during the military service of the United States Armed Forces are excluded from the concept of military service to which the Agreement applies, so there is no room to apply the provisions of the Agreement regarding criminal jurisdiction of the Republic of Korea.

According to the records, it is recognized that the defendant, who is a civilian of the United States armed forces of the United States of America, was staying in the Republic of Korea for more than ten years at the time of the crime of the traffic accident in this case, and was married with his Korean wife and married with his family, and was living in the Republic of Korea. Thus, the defendant is a person who ordinarily resides in the Republic of Korea as referred to in the agreement. Accordingly, the defendant is not subject to the provisions regarding criminal jurisdiction

B. Meanwhile, Article 22(1)(a) of the Agreement provides that "the United States military authorities shall have the right to exercise in the Republic of Korea all criminal jurisdiction and disciplinary measures granted by the laws and regulations of the United States Armed Forces to members, civilian personnel and their families of the United States Armed Forces," and that "the military authorities of the United States in the present state of the United States Acts shall not have a valid criminal jurisdiction over the civilian personnel and their families in peace. If the scope of the United States military jurisdiction is modified as a result of subsequent legislation, amendment of the Constitution, or decisions made by the appropriate authorities of the United States, the Government of the Republic of Korea shall notify the Government of the Republic of Korea through diplomatic channel." The above provisions stipulate that "The Government of the Republic of Korea shall have the right to exercise in the ordinary state of the Korean Peninsula at the time of entry into force of February 9, 1967, in other words, the provisions of the Agreement on the Military Affairs of the Republic of Korea, which entered into force on July 27, 1953, which shall not extend to the Agreement or the Convention 2.

In full view of the above provisions, since the military authorities of the United States of America do not have criminal jurisdiction over the civilian service of the United States Armed Forces, there is no possibility that criminal jurisdiction of the Republic of Korea and criminal jurisdiction of the military authorities of the United States of America are concurrent with regard to crimes committed by the civilian service of the United States Armed Forces, and the Republic of Korea can immediately exercise criminal jurisdiction over crimes committed by the civilian service of the United States Armed Forces in the territory of the Republic of Korea under Article 22(1)(b) of the Agreement and punished by the statutes

C. Therefore, the court below is just in holding that the Republic of Korea can exercise the criminal jurisdiction immediately against the crime of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents committed by the defendant who is a civilian belonging to the United States Armed Forces in the territory of the Republic of Korea, and there is no error in the misapprehension of legal principles as to the scope of the criminal jurisdiction of the Republic of

2. Judgment on the assertion of unfair sentencing

In this case where a fine is sentenced, the argument that the amount of punishment by the court below is too heavy cannot be a legitimate ground for appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)