Jurisdiction over Members of the United States Armed Forces in the event martial law is declared.

Even in cases where the Republic of Korea and the United States of America have concurrent jurisdiction over members of the United States Armed Forces, if martial law is declared in the Republic of Korea, the United States has exclusive jurisdiction in the area where martial law is declared. Therefore, the jurisdiction of the courts of the Republic of Korea over the members of the United States Armed Forces that were prosecuted before the martial law is declared and pending in the courts of the Republic of Korea also disappeared with

Article 22(1) and (3) 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

Defendant 1 and one other

Seoul Criminal District Court (79Gohap816)

The judgment of the court below is reversed.

The prosecution of this case is dismissed.

In accordance with Article 22 (1) (a) of the Agreement 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 under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, the military authorities of the United States of America have the right to exercise in the Republic of Korea all criminal jurisdiction and disciplinary rights granted to the members of the United States Armed Forces, but under Article 22 (1) (b) of the same Act, the authorities of the Republic of Korea have jurisdiction over crimes punishable by the laws and regulations of the Republic of Korea against the members of the United States Armed Forces in the territory of the Republic of Korea, and under Article 2 (3) of the same Act, where such jurisdiction competes with each other, the military authorities of the United States of America have jurisdiction over (1) solely with respect to the property or safety of the United States of America, or offences by acts or omissions in the course of performing official duties.

(b) However, the crime of this case falls under Article 22 (3) (b) of the same Agreement, and it is clear that the court of the Republic of Korea has the primary jurisdiction, barring special circumstances, as seen below, unless there are special circumstances.

However, according to the minutes of the agreement above, if the Republic of Korea declares martial law, the provisions of Article 22(1)(b) of the agreement above shall be immediately suspended in the territory of the Republic of Korea where martial law is under the order of martial law, and the military authorities of the United States have the right to exercise exclusive jurisdiction over the members of the United States Armed Forces in this area until martial law is rescinded, and the courts of the Republic of Korea have no authority to judge the members of the United States Armed Forces until martial law is rescinded. Thus, the jurisdiction of the courts of the Republic of Korea over the members of the United States Armed Forces which were indicted before the martial law is declared and pending before the martial law is declared also disappeared.

Therefore, since the fact that martial law is declared at present during the discharge of the Republic of Korea belongs to the publicly known fact that it is clear that a member of the legal entity of the Republic of Korea is not authorized to judge the Defendants who are members of the United States Armed Forces, and thus, it is unnecessary to determine the grounds for appeal alleged by the Defendants and their defense counsel pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, the judgment of the court below is reversed, and the prosecution of this case is dismissed in accordance with Article

It is so decided as per Disposition for the same reasons above.

Judges Yellowdon (Presiding Judge)