Whether a military court has jurisdiction over a crime under the Military Criminal Act under Article 1 (4) 3 of the Military Criminal Act regardless of whether a person who committed such crime was a soldier or a veteran, or whether a person discharged from active service or was a soldier (affirmative)

Article 2(1)1 of the Military Court Act and Articles 1(4)3, 54, and 56 of the Military Criminal Act

Defendant

Prosecutor

Law Firm (LLC) LLC, Attorneys Dun-An et al., Counsel for the defendant-appellant

Seoul High Court Decision 2016No1055 decided June 30, 2016

The judgment of the court below and the judgment of the court of first instance shall be reversed, and the case shall be transferred to the general military court of Grade 21.

The grounds of appeal are examined.

Article 2(1)1 of the Military Court Act provides that Article 1(4) of the Military Criminal Act shall have jurisdiction over offenses committed by persons prescribed in Article 1(4)3 of the Military Criminal Act. Article 1(4)3 of the Military Criminal Act provides that the Military Criminal Act shall apply to nationals and foreigners who have committed a crime corresponding to Articles 54 through 56, 58, 58-2 through 58-6, and 59 of the Military Criminal Act corresponding to military personnel. Therefore, with respect to offenses under the Military Criminal Act provided for in Article 1(4)3 of the Military Criminal Act, jurisdiction shall be over military courts regardless of their status, regardless of whether a person who committed such offense was a soldier or a veteran, who was discharged from active service.

Therefore, each court should have transferred the case to the competent military court pursuant to Article 16-2 of the Criminal Procedure Act with regard to this case prosecuted as a crime of enemy soldier, special assault, enemy soldier, special intimidation, or enemy soldier's assault as prescribed in Article 54 subparagraph 1 and Article 56 subparagraph 1 of the Military Criminal Act, since there is an identification jurisdiction over the military court pursuant to Article 2 (1) 1 of the Military Court Act, Article 1 (4) 3 of the Military Criminal Act, Article 54 and Article 56 of the Military Criminal Act, and each of the above courts should have transferred the case to the competent military court. Nevertheless, the judgment of the court below and the first instance court that exercised jurisdiction over the defendant erred by misapprehending the legal principles as to the jurisdiction of the military court, and the grounds for appeal pointing

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment and the first instance judgment are reversed, and the case is transferred to the competent military court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)