In a case where a military court has jurisdiction over a general citizen who committed a crime under each subparagraph of Article 1(4) of the Military Criminal Act pursuant to Article 2(1)1 of the Military Court Act, whether a general court has jurisdiction over other general crimes committed before or after the military court (negative)

[Majority Opinion] Article 2(1) of the Military Court Act provides that “A person prescribed in Article 1(1) through (4) of the Military Criminal Act shall have jurisdiction over “an offense.” Thus, in interpreting the language and text of the aforementioned provision, a citizen who is not a soldier or civilian military employee (hereinafter “general citizen”) commits a crime prescribed in each subparagraph of Article 1(4) of the Military Criminal Act (hereinafter “specific military crime,” and other crimes fall under the jurisdiction of the military court, thereby falling under the jurisdiction of the military court, there is room to view that the jurisdiction of the military court arises in relation to any subsequent offense. However, Article 27(2) of the Constitution of the Republic of Korea provides that “except as otherwise provided for in the Military Criminal Act, citizens shall not be tried by a military court, and thus, citizens shall not be subject to the military court’s new military court judgment.” In principle, even if a person commits a crime falling under Article 27(2) of the Military Criminal Act, he/she shall not be subject to general military court judgment.” This means that such case should be subject to general military court judgment.

Article 2(2) of the Military Court Act, for example, if a person who committed any offense before entering the military became a soldier, the purport is to enable a military court to render a judgment on a soldier who committed such offense. In light of the unique nature of the military legal system, in such a case, the necessity and purpose of a military court to exercise jurisdiction is sufficiently recognized. However, it does not necessarily mean that a military court has jurisdiction over other general crimes committed by a general citizen who committed a specific military crime due to discharge from military service. If a military personnel loses his/her status due to discharge from military service, etc., he/she is subject to a trial by a general court on crimes committed while in the military, except in special circumstances. However, if a general citizen committed a specific military crime and falls under the jurisdiction of a military court, there is no way to escape the status of a military court. In other words, where a general citizen commits any offense provided for in each subparagraph of Article 1(4) of the Military Criminal Act, if a military court receives a trial without any restriction, then the aforementioned interpretation would be more unfavorable than a military person.

In conclusion, even if the military court has jurisdiction over a specific military crime against the general public pursuant to Article 2(1)1 of the Military Court Act, it does not have jurisdiction over other general crimes committed before or after the specific military crime.

Therefore, in a case where a general citizen is prosecuted for a single case on the ground that a specific military crime and other general crime among several crimes committed by the general public constitute concurrent crimes under the former part of Article 37 of the Criminal Act, since a military court has exclusive jurisdiction over a specific military crime, a general court cannot exercise jurisdiction over such a specific military crime. On the contrary, the exercise of jurisdiction over a military court against all other general crimes cannot be permitted. In such a case, if a court exercises jurisdiction over a certain military crime prosecuted by a court, the court without jurisdiction should voluntarily establish a jurisdiction without any legal basis and render a judgment on such crimes that do not have jurisdiction. Accordingly, the general court or military court, which does not have jurisdiction over the whole case prosecuted, cannot judge the entire case

[Concurring Opinion by Justice Kim Yong-deok and Justice Park Sang-ok] The Military Criminal Act and the Military Court Act, based on Article 27 of the Constitution, recognize jurisdiction over military courts by applying the Military Criminal Act to military personnel, civilian employees, and other general citizens, and also provide that military courts may render a trial on other general crimes they committed. However, in light of the relevant provisions of the Military Criminal Act and the Military Court Act, in cases where jurisdiction over military courts is recognized due to special reasons, such as military crimes, under the Military Criminal Act (hereinafter “military crimes, etc.”) where military-related crimes, etc. under the Military Criminal Act, such crimes cannot be exercised by a general court as their own jurisdiction. However, in cases where a general crime, other than military crimes, is committed, the jurisdiction of military courts shall be arbitrarily recognized to have been tried by military courts on the premise that a trial was conducted in relation to military crimes, etc., and as

Therefore, in the case of general crimes that are not military crimes, the jurisdiction of military courts and the jurisdiction of general courts may exist concurrently, and in the case of disputes over specific jurisdiction over the pertinent crimes, the Supreme Court can determine the court to exercise jurisdiction through financial procedures in accordance with Article 3-2 of the Military Court Act.

[Dissenting Opinion by Justice Parkdae-dae, Justice Kim Chang-suk, and Justice Kim Shin] Article 2(2) of the Military Court Act provides that “A military court shall have jurisdiction over a crime committed by a person falling under Article 1(1)1 of the Military Court Act prior to the acquisition of his/her status.” This does not apply to cases under Article 1(1) through (3) of the Military Criminal Act, in which the status of an offender, such as military personnel and civilian employees, per se, is limited to only persons applicable under Article 1(1) through (3) of the Military Criminal Act. Such interpretation is inconsistent with the fundamental spirit that guarantees the fundamental right not to be tried by a military court, and thus, ought to be interpreted constitutionally.

However, regardless of whether a general citizen committed a specific military crime subject to the jurisdiction of the military court and a general crime subject to the jurisdiction of the general court, which is subject to the jurisdiction of the military court, and has to be punished in the same opportunity as a substantive concurrent crime under criminal law, and among them, several things have been stolen as a whole, which should be punished as a simple one crime as a whole, or as a single crime for a certain period of time, or as a single offense, even though the whole committed a larceny for a certain period of time, it should be punished as a single offense, or as a single offense, since military supplies are included in the object of crime, it is time to determine whether the general court and the military court should divide jurisdiction depending on the object of crime or be jointly tried by a court. The same holds true in cases where a soldier, etc. committed a specific military crime and a general crime in the status of a military person and escaped from military service.

The adjudication application system stipulated in Article 3-2 of the Military Court Act is immediately decided by the Supreme Court in such a case, and the Supreme Court has decided to exercise jurisdiction at a free discretion in consideration of various circumstances. Therefore, in the case of concurrent crimes where a specific military crime and a general crime are mixed in crimes subject to adjudication, whether to divide the courts in which jurisdiction is exercised for each crime can be decided by the Supreme Court.

However, since a general citizen’s right not to be tried by a military court is the fundamental right guaranteed by the Constitution, in cases where the exercise of jurisdiction of a military court becomes the object of exercise of jurisdiction due to an action element that the person committed a specific military crime rather than the original status element of a soldier, a civilian military employee, etc., the Constitution provides that a general court shall proceed to a trial for general crimes other than a specific military crime. Therefore, even if the Supreme Court makes a ruling on adjudication, it may separate a specific military crime from a general crime and a general crime from a military court and a general court or determine that a general court shall be tried separately or a specific military crime may be tried en bloc, but it is not permissible to allow a general crime to be tried

[Dissenting Opinion by Justice Lee Ki-taik] The fact that a person committed a certain criminal act is both the beginning of a criminal trial and the end of a criminal trial. No adequate punishment may be imposed regardless of who is the criminal offender, and multiple criminal acts cannot be separately assessed in criminal law accordingly.

The general court and the military court are in charge of the inherent criminal jurisdiction separately organized and operated, except for both the court of final appeal and the court of final appeal, and are in charge of each inherent criminal jurisdiction. Under the current law, the provisions concerning the jurisdiction of general courts and the military courts are Article 2 of the Military Court Act based on Articles 27(2) and 110(3) of the Constitution. Article 2 of the Military Court Act, which prescribes the subject of jurisdiction of the military court, is divided into those who are not an offense but an offense. There is no statute that assumes the separation of jurisdiction between the general court and the military court with respect to one person.

The separation of jurisdiction over specific military crimes and general crimes committed by one person is unreasonable. Inasmuch as Articles 27(2) and 110(3) of the Constitution of the Republic of Korea and Article 2 of the Military Court Act are deemed to be in the position of special law on the principle that citizens, other than soldiers, etc. do not undergo trials of military courts, courts have jurisdiction over all charges prosecuted by a military court.

Article 27(1) and (2), Article 110 of the Constitution of the Republic of Korea; Articles 37, 38, and 39 of the Criminal Act; Article 39 of the former Criminal Act (Amended by Act No. 7623, Jul. 29, 2005); Article 1(1), (2), and (4) of the Military Criminal Act; Article 1(3) of the Military Criminal Act (Amended by Act No. 14183, May 29, 2016); Article 2(1), (2), 3, and 3-2 of the Military Court Act

Supreme Court Decision 2003Do8253 Delivered on March 25, 2004 (overruled)

Defendant

Defense Counsel

Law Firm F&K, Attorneys Kim Won-jin et al.

Seoul Central District Court Decision 2016Gohap215 Preparation, etc. of False Official Document

The Seoul Central District Court has jurisdiction over the remaining parts of the instant case except for the theft of military supplies.

The grounds for an application for adjudication shall be examined.

1. Article 27 of the Constitution provides that all citizens shall have the right to a trial under the Act by a judge as prescribed by the Constitution and the Act (Paragraph 1), and that citizens, other than soldiers or civilian employees, shall not be tried by a military court, except where the Act 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 Act, 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 otherwise prescribed by the Constitution and the Act.

Meanwhile, Article 110 of the Constitution provides that a military court may be established as a special source to have jurisdiction over a military trial (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 to promptly hold a trial anywhere and anywhere in light of the characteristics of the military duties of the military in which the armed forces live in a collective military base in preparation for war at ordinary times (Article 5(2) of the Constitution), and the military court system needs to be organized and operated in advance at ordinary times in order to function properly in wartime, and it is determined by the resolution of the people, who are sovereigns, taking into account the situation in which the Republic of Korea

2. 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 subject to the Military Criminal Act, and Article 1 of the Military Criminal Act shall apply mutatis mutandis to “military personnel” (Article 1(1) and Article 1 of the Military Criminal Act to “military personnel” (Article 1(2)), and Article 1 of the Military Criminal Act provides that the Military Criminal Act shall apply to the students and students of military schools, military employees, officer candidates, etc. who were called up and performed active duty as military personnel (Article 1(4) and also the Military Criminal Act shall apply to the nationals and foreigners who committed a crime falling under any subparagraph of Article 1(4) of the Military Criminal Act corresponding to the military personnel (Article 1(4)). Furthermore, Article 2(2) of the Military Court Act also prescribes that the military court has jurisdiction over offenses committed before their status is acquired.

First of all, according to Article 2(1)1 of the Military Court Act and Article 1(4) of the Military Criminal Act, the military court has jurisdiction over the citizen and foreigner who committed a crime prescribed in each subparagraph of Article 1(4) of the Military Criminal Act (hereinafter “specific military crime”) and other crimes, etc., and in the event a general citizen commits a specific military crime after committing a specific military crime, whether the military court has jurisdiction over the general military court even over such general crime.

Article 2(1) of the Military Court Act provides that “A military court shall have jurisdiction over “a crime committed” under Article 1(1) through (4) of the Military Criminal Act. As such, in interpreting the language and text of the aforementioned provision, if a general citizen falls under the jurisdiction of a military court by committing a specific military crime, there is room to regard that a military court shall have jurisdiction over a general crime that subsequently committed such crime. However, Article 27(2) of the Constitution provides that a general citizen shall not be tried by a military court except for cases prescribed by Act in relation to serious military secrets, sentrys, sentrys, sentrys, food supply, prisoners of war, and military supplies, and military supplies.” Thus, a general citizen does not extend the jurisdiction of a military court even in such a case. In short, even if a general military court established “identification” to a general citizen who committed a specific military crime, such provision applies to a military person in principle, but it does not mean that a general military court should have jurisdiction over all other crimes that correspond to Article 27(2) of the Military Criminal Act after obtaining a new military court judgment.

Furthermore, the citizen’s right to trial as stipulated in Article 27(1) of the Constitution is the first place to realize the principle of the rule of law as a device to guarantee the other fundamental rights as well as fundamental rights prescribed in the Constitution. Therefore, even in cases where a military court has jurisdiction over a specific military crime against the general public pursuant to Article 27(2) of the Constitution, Article 1(4) of the Military Criminal Act, and Article 2(1)1 of the Military Court Act, it is merely a case where a military court has jurisdiction over a specific military crime against the general public pursuant to Article 27(1) of the Constitution, which is an exception to the right to trial by “a judge determined by the Constitution and Acts,” which guarantees Article 27(1) of the Constitution, and which causes specific and serious risks in preserving the organization and function of the military. In particular, a trial at a military court is conducted by a military judge and a judge, and if it is interpreted or applied differently from the trial at a general court, it shall not be permitted as it infringes on the essential contents of the citizen’s right to trial and it

Next, Article 2(2) of the Military Court Act provides that a person falling under Article 2(1)1 of the Military Court Act shall have jurisdiction over offenses committed before his/her status is acquired. In the case of a general citizen who commits a specific military crime, whether a military court has jurisdiction over other offenses committed before his/her former status is examined.

Article 2(2) of the Military Court Act is clear as to the purport of allowing a military court to hold a trial on a soldier who committed an offense, for example, if a person who committed an offense before entering the military. In light of the unique nature of the military legal system as seen earlier, the need and consistency of the military court to exercise jurisdiction is sufficiently recognized in such a case. However, it does not necessarily mean that a military court has jurisdiction over other general crimes committed by a general citizen on the ground that he/she committed a specific military crime.

If a soldier, etc. loses his/her status due to discharge from military service, etc., a general court shall be tried against a crime committed while in the military. However, if a general citizen commits a specific military crime and falls under the jurisdiction of a military court, there is no way to escape the status of the military court. In other words, if a general citizen commits a crime under any subparagraph of Article 1(4) of the Military Criminal Act and a military court conducts a trial without any restriction, any of the offenses committed before the military court shall be placed at a disadvantage rather than a military person. Such interpretation is not consistent with the spirit of Article 27 of the Constitution.

3. In conclusion, even if the military court has jurisdiction over a specific military crime under Article 2(1)1 of the Military Court Act against the general public, it is limited to the pertinent specific military crime, and it does not have jurisdiction over other general crimes that were previously or subsequently committed.

Therefore, in a case where a general citizen was prosecuted on the ground that a specific military crime and other general crime among several crimes committed by the general public constitute concurrent crimes under the former part of Article 37 of the Criminal Act, a military court should have exclusive jurisdiction over a specific military crime. As such, a general court cannot exercise jurisdiction over such a specific military crime. On the contrary, it is not permissible for a military court to exercise jurisdiction over any other general crimes. In such a case, if a court exercises jurisdiction over a certain military crime prosecuted, the court without jurisdiction established a discretionary jurisdiction without any legal basis and rendering a judgment on such crimes that do not have jurisdiction, and thus, the general court or military court, which does not have jurisdiction over the whole case prosecuted, cannot judge the entire case.

Furthermore, prior to the amendment of Article 39(1) of the Criminal Act by Act No. 7623 of July 29, 2005, one of the general courts or military courts was favorable to the defendant in that it can be applied to the application of Article 38 of the Criminal Act concerning the aggravation of concurrent crimes. However, due to the amendment of the above provision of the Criminal Act, the sentence is imposed in consideration of the equity with the case where a judgment is rendered for ex post facto concurrent crimes at the same time as the one which became final and conclusive. However, if necessary, even if the general court and military court respectively exercise jurisdiction and proceed a separate trial, it cannot be deemed as disadvantageous to the defendant in sentencing. Even if a trial is conducted in a single trial on multiple crimes favorable to the defendant in terms of the economy of the lawsuit, it is the right of the criminal defendant to a trial at a court with legitimate jurisdiction, and it is not the nature of waiver for the economy of due process.

On the contrary, the Supreme Court’s previous Supreme Court’s opinion (Supreme Court Decision 2003Do8253 Decided March 25, 2004, etc.) which held that a military court has jurisdiction over a crime under the jurisdiction of the military court among the facts charged against the general public among those prosecuted by the military court, as well as other crimes prosecuted for concurrent crimes on the ground that the military court has jurisdiction over such crime, shall be modified to the extent inconsistent with the above opinion.

4. According to the records, the Defendant prepared 36 copies of a test and evaluation report in the name of the head of the Korea Army Academy at Armed Forces, with the request of the outside company around December 17, 2009, when he was in office as a professor of the Korea Army Academy at Armed Forces, using experimental data from other companies, and falsely recorded the test results. From March 19, 2010 to May 21, 2012, the Defendant submitted 11 copies of the above test and evaluation report as an internal director of the above company nine times after discharge to the bidder (a false official document preparation and a false official document presentation) and submitted them to the bidder (b) around October 7, 2009 and around November 18, 2009, after which he was in office as a professor of the Korea Army Academy at Armed Forces, he/she received permission from the outside company on the total of 300 carbon used by the Korea Army Academy at Armed Forces and transferred them to the outside employee with the permission of the Seoul Defense Acquisition Program Administration on March 16, 21, 2013.

Examining the facts charged against the defendant and the records of trial in light of the legal principles as seen earlier, the defendant is a general citizen who is not a soldier or civilian military employee and has jurisdiction over the general court having jurisdiction over the preparation of false official documents, the uttering of false official documents, and the violation of the Defense Acquisition Program Act among the facts charged, and there is no room for recognition of his/her status under the Military Court Act. However, each of the crimes of larceny of military supplies, which is a specific military crime, shall have exclusive jurisdiction pursuant to Article 1(4)5 of the Military Criminal Act, and the competent general military court shall have exclusive jurisdiction pursuant to Article 2(1)1 of the Military Court Act, and even if each of the above crimes was charged with concurrent crimes with the Seoul Central District Court, it cannot be deemed that the Seoul Central District Court, which

Therefore, the Seoul Central District Court has jurisdiction over the remaining parts of the instant case except for the theft of military supplies.

5. Therefore, it is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Kim Yong-deok and Justice Park Sang-ok, Justice Park Poe-dae, Justice Kim Chang-suk, and Justice Kim Shin, and a separate dissenting opinion by Justice Lee Ki-taik, by Articles 3-2(1) and 3-3(1) of the Military Court Act.

6. Separate opinion by Justice Kim Yong-deok and Justice Park Sang-ok is as follows.

A. The Military Criminal Act and the Military Court Act, based on Article 27 of the Constitution, recognize jurisdiction over military personnel, civilian personnel, and other general public by applying the Military Criminal Act, and, at the same time, determine that military courts may have jurisdiction over other general crimes they committed.

However, in light of the relevant provisions of the Military Criminal Act and the Military Court Act, in cases where jurisdiction of a military court is recognized due to special reasons related to the military, such as military crimes under the Military Criminal Act (hereinafter “military crimes, etc.”), it can be deemed that a general court cannot exercise its own jurisdiction. However, in cases where a general crime, other than a military crime, is committed, jurisdiction recognized by a military court, which is recognized as a military court, shall be determined by a military court on the premise that a trial was conducted in relation to a military crime, etc., and thus, the jurisdiction of a general court shall not

Therefore, unlike the majority opinion, in cases of general crimes that are not military crimes, the jurisdiction of military courts and general courts concurrently exist, and in cases where there is a dispute over specific jurisdiction over the pertinent crimes, the Supreme Court should be deemed to have determined the court to exercise its jurisdiction through the financial procedure prescribed in Article 3-2 of the Military Court Act.

The specific reasons for this are as follows.

B. (1) Article 27 of the Constitution guarantees the right to a trial by “a judge as prescribed by the Constitution and the Act” (Paragraph (1)), but permits a military court’s trial on a soldier, military employee, and a civilian military employee of the Republic of Korea as to “a person who is not a soldier or civilian military employee in the case where the Act is prescribed among crimes concerning important military secrets, sentrys, sentrys, food supply, prisoners of war, and military supplies in the territory of the Republic of Korea and where emergency martial law is declared” (Paragraph (2)).

(2) In addition, Article 1 of the Military Criminal Act applies to “military personnel”; (a) the Military Criminal Act provides that a soldier shall be excluded from officers, warrant officers, noncommissioned officers, and enlisted soldiers in active service (paragraph (1)); (b) a civilian military employee; (2) a student, a student, a student, a military officer, a noncommissioned officer, or a military soldier who is in the military register under Article 57 of the Military Service Act; and (3) a student, a student, a student, a military officer, a noncommissioned officer, or a person in the second citizen service, who is called for and served in the military service, shall be subject to the Military Criminal Act corresponding to a soldier; and (c) a soldier, who disclosed military secrets to the enemy (Article 13(2)); and (4) a soldier, etc. subject to the Military Criminal Act shall also apply to a national, a foreigner, etc. who committed a crime falling under any of the subparagraphs of Article 1(4) (hereinafter referred to as “national, military person subject to the Military Criminal Act”).

(3) Furthermore, Article 2(1) of the Military Court Act provides that ① Persons prescribed in Article 1(1) through (4) of the Military Criminal Act (excluding Koreans and foreigners prescribed in each item of subparagraph 1; hereinafter “persons falling under subparagraph 1”) and prisoners of war managed by the national military unit shall have jurisdiction over crimes committed by the military court. Article 2(2) of the Military Court Act provides that “any person falling under subparagraph 1” shall have jurisdiction over offenses committed by the military court prior to the acquisition of his/her status. (B) Article 3 of the Military Court Act provides that ① Jurisdiction under the Martial Law Act and Article 13 of the Military Secret Protection Act and jurisdiction over offenses and attempted offenses under Article 13 of the Military Secret Protection Act shall also have jurisdiction over military courts.

C. As above, if the Constitution, along with military personnel and civilian military employees, commits a serious military-related crime, and martial law, the military court’s jurisdiction over the general public shall be permitted, and accordingly, the military court shall individually determine crimes applicable to nationals and foreigners under the Military Criminal Act. Furthermore, except as otherwise provided in Articles 2(1) and 3 of the Military Court Act, “persons falling under subparagraph 1,” including “Korean nationals, etc. subject to the Military Criminal Act,” “war prisoners of war managed by the national military unit,” Article 13 of the Military Secret Protection Act, attempted crimes under Article 13 of the Military Secret Protection Act, and trials under the Martial Law, and the expression “personal jurisdiction” is used in relation thereto. In light of the above, the jurisdiction of the military court can be deemed as an exclusive jurisdiction of the military court, which is specifically prescribed by the Constitution and Acts, taking into account serious military-related crimes that cause specific risks in preserving the organization and functions of the military (referring to crimes that constitute the basis for jurisdiction of the military court under the exclusive jurisdiction).

D. (1) Meanwhile, as seen earlier, Article 2(1) of the Military Court Act only provides that “a person falling under subparagraph 1” has jurisdiction over a “criminal offense,” and does not restrict the content of such “criminal offense.” In light of the foregoing, the Military Court Act also has jurisdiction over general crimes committed after the “person falling under subparagraph 1,” which falls under the jurisdiction of the military court, falls under subparagraph 1.

In addition, Article 2(2) of the Military Court Act provides that a military court shall have jurisdiction over a crime committed by a “person falling under subparagraph 1” prior to the acquisition of his/her status, and that a general crime committed prior to a military crime, etc. shall also have jurisdiction over a military court.

(2) In light of Article 27(2) of the Constitution that limits the jurisdiction of a military court against a general citizen who is not a soldier or military employee, in principle, a general crime committed by a general citizen or a general crime committed by a “person falling under subparagraph 1” prior to the acquisition of such status shall have jurisdiction in a general court.

However, Articles 37 and 38 of the Criminal Act provide that when multiple crimes for which judgment has not become final and conclusive are concurrent crimes and the punishments specified for each crime are of the same kind, other than death penalty, life imprisonment, or imprisonment without prison labor for life, the maximum term or maximum amount for the most severe crime shall be aggravated by up to one half thereof; however, Article 40 of the Criminal Act provides that the punishment for the most severe crime shall be imposed in the case where one act constitutes several crimes, the punishment for the most severe crime shall be provided, thereby promoting reasonable sentencing for the several crimes for which judgment has not become final and conclusive, and such reasonable sentencing needs for “persons falling under subparagraph 1” shall not be deemed different. In addition, where several concurrent crimes are committed in the same opportunity near time and place and most of the evidence are jointly used, it cannot be said that the proper evaluation of the crimes would be favorable for the defendant in terms of protecting the right to a trial, and making a separate judicial agency separate judgment by virtue of the mere reason that part of them is a general crime, which would result in an unreasonable result in litigation or economic action.

In light of such circumstances, the above provisions extended the jurisdiction of military courts in order to ensure that general crimes committed by “person falling under subparagraph 1” can be conducted together with military crimes, etc.

(3) Therefore, the military court’s jurisdiction is recognized as incidental to the military court’s inherent jurisdiction taking into account the need for simultaneous trials. Inasmuch as military-related crimes and martial law are different from the military court’s inherent jurisdiction recognized for military crimes, taking into account the characteristics of military-related crimes and martial law, the purport and grounds for recognition of jurisdiction are different. Therefore, in special circumstances, such as where concurrent trials are unnecessary or it is inappropriate to take into account, it is reasonable to deem

According to the Military Criminal Act and the Military Court Act, if a soldier loses his/her status as a soldier, it shall belong to the jurisdiction of a general court except in special cases corresponding to “nationals, etc. subject to the Military Criminal Act.” As such, the fact that a military crime, etc., which belongs to exclusive jurisdiction, may vary depending on changes in his/her status, appears to be inappropriate to interpret and treat the military court’s jurisdiction as completely separated from that of the general court’s jurisdiction.

E. Therefore, even if a military court’s trial on general crimes is possible under the Military Court Act, the jurisdiction of the general court is not extinguished solely for such reason, and the jurisdiction of the military court and the general court concurrently exists.

As seen earlier, in a case where a general crime is in the relationship of concurrent crimes with military crimes, ordinary concurrent crimes, or blanket crimes, it is appropriate to judge the military court together with the same. However, in light of the content and nature of crimes, such as where general crimes were committed regardless of military crimes, time and place, and where general crimes are the main parts of charges, if there are special circumstances such as where it is unnecessary for a military court to judge a general crime together with other general crimes or it is inappropriate for a military court to enforce a trial by a military court against the will of the defendant who wishes to render a judgment by a general court, a general court may decide on general crimes separately from military crimes. Furthermore, even though a person falls under “a person who falls under subparagraph 1”, a general court judgment was made and finalized as to general crimes committed by him/her, and the procedure of trial is not unlawful solely on the grounds therefor.

However, there may be disputes as to whether or not the jurisdiction of the military court and the jurisdiction of the general court in regard to general crimes coincide with each other. Article 3-2 of the Military Court Act provides that the Supreme Court shall render adjudication in the event of a dispute over the existence of jurisdiction. Such adjudication procedures include not only the determination of whether jurisdiction exists but also the determination of the court which finally exercises jurisdiction where jurisdiction between the military court and the general court is concurrent with regard to general crimes as above. It is reasonable to interpret that such adjudication procedures include not only the determination of whether jurisdiction exists but also the determination of the court which finally exercises jurisdiction.

In addition, when determining the court to exercise jurisdiction over general crimes in accordance with such fiscal procedure, the court should have jurisdiction over general crimes in consideration of the purpose of recognizing jurisdiction over general crimes in military courts, the contents and character of crimes, the defendant's intention, the influence on the defendant whether to separate a trial or not, and the result of litigation and economic aspects, and the court should have jurisdiction appropriate for realizing the right to a fair and appropriate trial guaranteed by the Constitution.

F. We examine this case in light of the above legal principles.

(1) The Defendant was discharged from military service after committing theft of military supplies under Article 1(4)5 of the Military Criminal Act with the rank of reserve forces, and then lost his status as a military person.

(2) Each of the facts charged in the instant case is a military crime that applies to a national subject to the Military Criminal Act, etc., and even if the Defendant is a citizen, the military court has exclusive jurisdiction over the Defendant.

(3) However, the crime of preparing false official document, and the crime of uttering of false official document and the crime of violation of the Defense Acquisition Program Act, which are the remainder of the facts charged, are general crimes (hereinafter “instant general crimes”), and the jurisdiction of the military court and the general court is concurrent.

In light of the general crime of this case committed irrespective of the theft of military supplies, the contents and purpose of the crime are different from those of the theft of military supplies. In particular, since the crime of uttering of false documents and the violation of the Defense Acquisition Program Act was committed after discharge, the relevant evidence is both outside of the military unit and the investigation was conducted by a general investigation agency, there is no need to judge the general crime of this case together with the theft of military supplies.

The crime of larceny of military supplies is punishable by imprisonment with prison labor for a maximum of five years pursuant to Article 75(1)1 of the Military Criminal Act. However, the general crime of this case is punished by imprisonment with prison labor for not more than seven years or by imprisonment with prison labor for not more than ten years. Even if the general crime of this case is separately tried, an appropriate sentencing can be imposed for the general crime of this case, including statutory punishment for larceny of military supplies.

In addition, this case is currently being tried by the Seoul Central District Court for all the facts charged, and the defendant is going to a trial by the general court.

Examining these circumstances in light of the spirit of the Constitution guaranteeing the right to a trial by the general court, it is reasonable to determine that the Seoul Central District Court, where a trial is pending, has to continue to exercise its jurisdiction over the general crime of this case.

G. As above, I agree with the conclusion of the majority opinion as to the instant case, but differ in its reasoning, and therefore I express my separate opinion.

7. Dissenting Opinion by Justice Park Poe-dae, Justice Kim Chang-suk, and Justice Kim Shin

A. Article 27(2) of the Constitution provides, “A citizen, other than a soldier or military employee, shall not be tried by a military court except where the Act is prescribed among crimes concerning military secrets, sentrys, sentrys, sentrys, food supplies, prisoners of war, and military supplies, and where emergency martial law is declared in the territory of the Republic of Korea.” As pointed out in the Majority Opinion, a general citizen guarantees fundamental rights for which a military court is not to be tried by a military court and a qualified judge is not to be tried, and at the same time setting the limit that a military court may exercise jurisdiction. Therefore, the scope of jurisdiction that a general court or a military court may exercise shall be determined based on the provisions of this Act and the spirit of the Constitution contained therein.

B. According to Article 2 of the Military Court Act, a military court has jurisdiction over a crime committed by a person prescribed in Article 1(1) through (4) of the Military Criminal Act and a prisoner of war managed by a national military unit. However, among persons prescribed in Article 1(1) through (4) of the Military Criminal Act, a person subject to Article 1(1) through (3) of the Military Criminal Act is subject to the Military Criminal Act by itself as his/her offender’s status, such as a soldier, military employee, etc. However, a person subject to Article 2(4) of the Military Criminal Act is defined as a person subject to the Military Criminal Act because it is an act in relation to a case where a general citizen commits a specific military crime. Although Article 2(1) through (3) of the Military Court Act provides that a person subject to Article 2(4) of the Military Court Act refers to a person subject to the Military Court Act’s inherent meaning and comprehensively subject to the Military Criminal Act’s status as a person subject to a specific military crime, regardless of the inherent nature of Article 27(2) of the Constitution.

Therefore, not only cases where a soldier or a civilian military employee commits a crime under the Military Criminal Act, but also cases where a person commits a general crime is subject to a trial by the military court. However, a general citizen is only subject to a trial by the military court limited to cases where a specific military crime is committed and such crime is committed. Therefore, even if a general citizen is held in the position of a military court for having committed a specific military crime, no reason exists for a general crime to be tried by the military court. Therefore, Article 2(2) of the Military Court Act provides that “The military court shall have jurisdiction over a crime committed before a person falling under Article 1(1)1 acquires the status.” Thus, the interpretation of Article 1(1) through (3) of the Military Criminal Act applies to only persons who are subject to the Military Criminal Act, such as a soldier or a civilian military employee, by itself, should not be construed as applicable to cases where such interpretation is made in accordance with Article 27 of the Constitution, because it goes against the fundamental spirit of guaranteeing the fundamental rights of the military court, etc., and thus, it should be viewed as a general military court’s interpretation.

C. However, in cases where a general citizen commits a specific military crime that is subject to the jurisdiction of the military court and a general crime that is subject to the jurisdiction of the general court, and has to be punished as a substantive concurrent crime under the Criminal Act, various things were stolen in the same opportunity. Among them, when mixing military supplies with the military supplies, it should be punished as a simple one crime as a whole, or when a single crime was committed for a certain period, and the whole amount was punished as a single crime, but it should be punished as a single crime because it constitutes a single comprehensive crime or habitual larceny. As military supplies are included in the subject matter of the crime, it is time to determine whether the general court and the military court should divide the jurisdiction according to the subject matter of the crime or be jointly tried by a single court. The same problem arises even in cases where a soldier, etc. committed a specific military crime and a general crime in the status of his/her military service and went beyond the status of a soldier

The system of application for adjudication under Article 3-2 of the Military Court Act requires the Supreme Court to decide on which court shall exercise jurisdiction immediately in such cases, and the Supreme Court shall decide upon the court to exercise jurisdiction at a free discretion, taking into account various circumstances cited in the separate opinions. Therefore, in cases of concurrent crimes where a specific military crime and a general crime are mixed with a specific military crime, whether to divide jurisdiction for each crime can be determined by the Supreme Court as an adjudication decision. It is not always necessary that a military court or a general crime should be tried separately from a general court. Such a specific military crime should not be determined by the Supreme Court with the system of application for adjudication, and it can only be interpreted as if it is not immediately prescribed by the Act or without any provision. Thus, the Majority Opinion does not accord with the purport of the Military Court Act which has established the system of application for adjudication. Moreover, according to the Majority Opinion, it is questionable whether a single crime or a single crime or a single crime are concurrent with a military court or a single crime, and if it is not possible to bring about concurrent prosecution or a single judgment, it does not constitute a single crime or concurrent judgment.

However, since a general citizen’s right not to be tried by a military court is the fundamental right guaranteed by the Constitution, if a military court’s exercise of jurisdiction is not an original status element of military personnel, civilian personnel, etc., but an action element of having committed a specific military crime, then it should be deemed that the provision of the Constitution requires a general court to have been tried for a general crime other than such specific military crime. Therefore, in such a case, the Supreme Court may separate a specific military crime from a general crime and a general crime from a military court and a general court, or make a general court to be tried for a specific military crime in a single manner, but it is not permissible to have a general crime tried by a military court, as it results in infringing on the fundamental rights under the Constitution. In this regard, it is different from the separate opinion on the majority opinion. As such, since a military court’s exercise of jurisdiction differs from a case where a military court’s trial should be tried due to the inherent status element of a military personnel, civilian personnel, etc., such as a military personnel, civilian employee, etc., and thus,

D. Examining the instant case in accordance with the interpretation of the aforementioned legal doctrine, comprehensively considering the various circumstances presented by the majority opinion and the separate opinion with regard to the majority opinion, it is reasonable to have the Seoul Central District Court, which currently is currently pending trial including the part regarding larceny of military supplies, render a judgment on the whole of the instant case to the Seoul Central District Court, including the part regarding larceny of military supplies. Above all, it is appropriate to ensure the right of the Defendant to receive a proper trial. Therefore, it is reasonable to make a ruling that the jurisdiction over

As above, I express my dissenting opinion as to the Majority Opinion.

8. Dissenting Opinion by Justice Lee Ki-taik is as follows.

A. The Republic of Korea establishes a separate body that is a general court and a military court as an organization to exercise the state power, which is the penal authority, and this two agencies are separate bodies that have no relevance to their organization and operation, except that the Supreme Court takes charge of both the final appeal to the Supreme Court and achieve unification of statutory interpretation. In the situation where two separate bodies are established and operated to exercise one state power, which is the State penal authority, in order to exercise one state power, it is very difficult for a certain body to perform its duties in punishing several crimes for which one person has not yet been tried, and there is a wide range of room for interpretation as a relationship not clearly prescribed in the current law. The defendant also does not have a very important issue in which the trial agency for exercising the State penal authority against himself/herself is a judge, public prosecution authority, litigation procedure and evidence law. This is because the Supreme Court has determined how to defend B.

The possible interpretation is like the majority opinion, the general court theory, and the military court theory, and it is reasonable to divide one person into the areas of criminal jurisdiction and decide one another as the majority opinion.

(1) The fact that a person commits a certain criminal act is both the beginning of a criminal trial and the end of a criminal trial. An appropriate punishment may not be imposed regardless of who is a criminal suspect, and multiple criminal acts may not be separately assessed accordingly under criminal law. For example, where a person commits a crime A and B, the sum of each judgment rendered by dividing the crimes into “A” and “A” and “B” cannot be the same as the judgment of “A and A”. In short, the issue of balancing is not simply a matter of sentence. In short, a single criminal trial and punishment can be imposed only with a person. Although it is possible for the State to evaluate one person’s multiple crimes together, there is a reason to divide the two crimes and keep them far away from the ideal of the criminal justice. The State also does not have to protect the criminal defendant.

These discussions do not seem to refer to the legal principles of concurrent crimes as stipulated in Article 37 of the Criminal Code, which provides that the combined punishment and sentence should be determined for several crimes.

(2) As mentioned earlier, the general court and the military court are in charge of the area of criminal jurisdiction separately organized, operated, and unique to each of the two organizations, except for both courts of final appeal, which are the law-oriented court. The division of one state power into two organizations is able to lead each other to the existence of different registers concerning one real estate prepared by each agency, by having the two organizations take charge of the national real estate registration affairs at the same time. At least, it is thought that the conflict of authority should be prevented by distinguishing the real estate under their jurisdiction. The same applies to the general court and the military court. At the same time, the same time, the same state power and the state affairs with respect to one person cannot be carried out overlappingly. This situation should be avoided by the interpretation of the court even if there is no explicit law.

The reality is that two detention warrants are issued based on different jurisdiction and the execution of a certain warrant is not left to the reality at the site. The reality is that a person who is to be detained and tried on bail is detained in a court having other jurisdiction, or is not detained in either party because the criminal facts are divided in quantity and the criminal facts belong to their respective jurisdiction. At the same time, there is no inconvenience and damage that one person must comply with the procedures and orders of each court. It cannot be said that a person cannot be said that he/she is subject to conflicting state power without adjustment in the same area.

The separation of jurisdiction like the majority opinion is deviating from the principle that should be observed in determining the composition and operation of the national governing body.

(3) Under the current law, the provisions concerning the jurisdiction of a general court and a military court are governed by Article 2 of the Military Court Act based on Articles 27(2) and 110(3) of the Constitution. Article 2 of the Military Court Act provides, “Military courts shall have jurisdiction over offenses committed by any of the following persons,” and Article 1(1) of the Military Criminal Act provides, “The Military Court shall have jurisdiction over offenses committed by a person falling under Article 1(1) through (4) of the Military Criminal Act,” and Article 2(2) provides, “The Military Court shall have jurisdiction over offenses committed by a person falling under Article 1(1)1 of the Military Criminal Act before acquiring his/her status.” As can be seen, Article 2 of the Military Court Act, which provides for the subject of jurisdiction of a military court, is divided by the standards of persons, not for offenses subject to the jurisdiction of a military court:

There is no legislation that is premised on the separation of jurisdiction between the general court and the military court with respect to the defendant of one person.

(4) If jurisdiction is separated as stated in the Majority Opinion, the problem that the purpose of the concurrent crime system under Article 37 of the Criminal Act cannot be achieved at the time a judgment is rendered and finalized in each trial is merely a small point.

B. Based on the above discussion, the conclusion that the separation of jurisdiction as to a specific military crime and a general crime committed by one person is unreasonable. Furthermore, it is difficult to distinguish jurisdiction between a general court and a military court and it is an important issue. Although it is not possible to understand each opinion such as the Majority Opinion, the provisions of Articles 27(2) and 110(3) of the Constitution and Article 2 of the Military Court Act shall be deemed to have jurisdiction over all charged crimes committed by a military court, insofar as a citizen who is not a soldier, etc. is in the position of a special law on the principle that a military court does not have a trial. Until now, there is no reason to change the opinion that this court has taken.

In conclusion, the Seoul Central District Court has no jurisdiction over all the charges of this case against the defendant.

Justices Lee In-bok (Presiding Justice)