PART I MILITARY COURT AND MILITARY PROSECUTORS’ OFFICE
CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to prescribe the organization and authority, and qualifications for a military judge of a military court having jurisdiction over military trials, and judicial proceedings, the organization and authority, and investigation procedures of the Military Prosecutors’ Office pursuant to Article 110 of the Constitution of the Republic of Korea. [This Article Wholly Amended on Dec. 29, 2009]
| Article 2 (Jurisdiction according to Status) |
| (1) | Military courts shall have jurisdiction over offenses committed by any of the following persons: <Amended on Feb. 3, 2015> |
| (a) | A domestic or foreign person who commits a crime under Article 66 of the Military Criminal Act against a military factory, a facility or bridge for combat use, or a warehouse that stores goods for military use; |
| (b) | A domestic or foreign person who commits a crime under Article 68 of the Military Criminal Act against a military factory, a facility or bridge for combat use, or a warehouse that stores goods for military use; |
| (c) | A domestic or foreign person who commits a crime under Article 69 of the Military Criminal Act against a military factory, a facility or bridge for combat use, a warehouse that stores goods for military use, or a railroad, an electric cable, or other installations for military use; |
| (d) | A domestic or foreign person who attempts to commit a crime under the provisions of (a) through (c); |
| (e) | A domestic or foreign person who commits a crime under the provisions of (a) through (c) against a military facility of foreign armed forces that participate in a joint operation with the Republic of Korea Armed Forces; |
| 2. | Prisoners of war administered by the military units of the Republic of Korea Armed Forces. |
| (2) | Military courts shall have jurisdiction over offenses committed by any persons under paragraph (1) 1 before they obtain such status. |
| (3) | Where a military court ceases to have jurisdiction over a case of which public prosecution was instituted, or it has become clear that a military court does not have jurisdiction over such case, it shall, by ruling, transfer such case to a court of the same tier having jurisdiction over such case, but, a case on appeal to be tried by a single judge, among cases pending in the High Military Court, shall be transferred to the appellate division of a district court. In such cases, the validity of litigation before transfer shall not be lost even after transfer. |
[This Article Wholly Amended on Dec. 29, 2009]
[This Article was amended by promulgated February 3, 2015 pursuant to the decision of unconstitutionality by the Constitutional Court made on November 28, 2013]
| Article 3 (Other Jurisdictions) |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 3-2 (Application for Adjudication concerning Dispute over Jurisdiction) |
| (1) | When a dispute over jurisdiction arises between a court and a military court, the court or military court in which the relevant case is pending or the appellant of the relevant case under this Act and Criminal Procedure Act may file, with the Supreme Court, an application for adjudication whether jurisdiction belongs to the court or military court. |
| (2) | Where the court or military court in which a case is pending files an application under paragraph (1), it shall submit an application with grounds for filing and records of the relevant case to the Supreme Court. |
| (3) | Where a person entitled to an appeal files an application prescribed in paragraph (1), he/she shall submit an application with grounds to the court or military court in which the relevant case is pending, and the court or military court on the receipt of such application shall send the records of such case to the Supreme Court within seven days from the date it received such application. |
| (4) | When an application for adjudication concerning a dispute over jurisdiction is filed, legal proceedings for such case shall be suspended until the Supreme court makes the adjudication. |
| (5) | The court or military court that has completed procedures under paragraphs (2) and (3) shall notify the Prosecutor General of the Supreme Prosecutors’ Office of such fact within seven days. |
[This Article Newly Inserted on Dec. 29, 2009]
| Article 3-3 (Trial of Adjudication concerning Dispute over Jurisdiction) |
| (2) | Whether jurisdiction exists or not shall be adjudicated on the basis of facts constituting an offense subject to public prosecution written on the bill of indictment and trial records. |
[This Article Newly Inserted on Dec. 29, 2009]
| Article 3-4 (Submission of Opinion by Prosecutor General) |
The Prosecutor General of the Supreme Prosecutors’ Office may submit a written opinion on the dispute over jurisdiction prescribed in Article 3-2. [This Article Newly Inserted on Dec. 29, 2009]
| Article 3-5 (Delivery, etc. of Adjudication Documents) |
| (1) | The original written adjudication of the Supreme Court on a dispute over jurisdiction prescribed in Article 3-2 and the records of the relevant case shall be delivered to the court or military court in which the relevant case has been pending within two days from the date of adjudication. |
| (2) | Upon the receipt of the original written adjudication that no jurisdiction over the relevant case exists and the records of the relevant case, the court or military court shall send the records of the relevant case and articles of evidence to the competent court or military court within three days. |
[This Article Newly Inserted on Dec. 29, 2009]
| Article 3-6 (Validity of Litigation before Application for Adjudication) |
No adjudication decision that jurisdiction does not exist shall deprive the court or military court of validity of all the litigation filed before an application for adjudication prescribed in Article 3-2 (1) was filed. [This Article Newly Inserted on Dec. 29, 2009]
| Article 3-7 (Disposition on Detention of Defendants) |
Disposition on the detention of a defendant during the period elapsing due to the adjudication of dispute over jurisdiction shall be determined by the Supreme Court, or any court or military court in which the records of the relevant case exist.
[This Article Newly Inserted on Dec. 29, 2009]
| Article 4 (Power of Supreme Court to Establish Rules) |
| (1) | The Supreme Court shall establish military court rules concerning internal regulations and handling of office work of military courts upon a resolution by the military judicial officers' council. |
| (2) | The military judicial officers' council shall be chaired by the Minister of National Defense and be composed of two military judge advocates designated by the Minister of National Defense and two military judge advocates respectively designated by the Chief of Staff of each military branch. |
| (3) | The military judicial officers' council shall pass resolutions with at least 2/3 of the members on the register present and a majority vote of the members present. |
[This Article Wholly Amended on Dec. 29, 2009]
CHAPTER II ESTABLISHMENT AND JURISDICTION OF MILITARY COURTS
| Article 5 (Types of Military Courts) |
Military courts shall be comprised of the following two types:
| 2. | General military courts. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 6 (Establishment of Military Courts) |
| (1) | The High Military Court shall be established within the Ministry of National Defense. |
| (2) | General military courts shall be established as specified in the attached Table. <Amended on Jan. 6, 2016> |
| (3) | In addition to general military courts referred to in paragraph (2), the Minister of National Defense may establish other general military courts in units, etc. falling under any of the following subparagraphs in time of war, disaster or a national emergency corresponding thereto: <Amended on Jan. 6, 2016; Mar. 21, 2017> |
| 1. | A unit under the command of a general-grade officer in the military organization formed in time of war, disaster or a national emergency corresponding thereto; |
| 2. | A unit or agency (excluding an investigation agency; hereinafter referred to as a “unit”) under the command of a general-grade officer in the military organization. |
| (4) | Matters necessary for the organization of military courts shall be prescribed by Presidential Decree. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 7 (Convening Authority of Military Courts) |
| (1) | Military courts shall have a convening authority. |
| (2) | The convening authority of the High Military Court shall be the Minister of National Defense. |
| (3) | The commander, head or commanding officer of a unit and the area in which a general military court is established shall become the convening authority of the general military court: Provided, That the convening authority of the High Military Court shall concurrently hold the status of the convening authority of the general military court of the Ministry of National Defense. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 8 (Power of Convening Authority) |
| (1) | The convening authority of the High Military Court shall take charge of the administrative affairs of the High Military Court, and command and supervise the administrative affairs of the general military courts of the integrated units under the command and operational control of the Ministry of National Defense and the headquarters of each military branch. |
| (2) | The convening authority of a general military court shall take charge of administrative affairs of such general military court. |
| (3) | The convening authority of the general military court at the headquarters of each military branch shall take charge of administrative affairs of the general military courts of subordinate units. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 9 (Matters to be Judged by Supreme Court) |
The Supreme Court shall judge appeals against military court judgments.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 10 (Matters to be Judged by High Military Court) |
The High Military Court shall judge appeals against general military court judgments, complaints against general military court rulings and other cases belonging to the power of the High Military Court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 11 (Matters to be Judged by General Military Courts) |
| (1) | General military courts shall judge the following cases as a court of first instance: |
| 1. | Cases where a subordinate directly responsible to the head of a unit at which a military court is established or a person under direct supervision thereof is a defendant: Provided, That this shall not apply where a military court has been established at a subordinate unit thereof; |
| 2. | Cases where a person belonging to a unit of the same military branch situated in the operational area, military district or security district of a unit at which a military court has been established or a person under the supervision of the head of such unit is the defendant: Provided, That this shall not apply where a military court has been established at such unit; |
| 3. | Cases where a person existing in the operational area, military district or security district of a unit at which a military court was established or a person falling under Article 1 of the Military Criminal Act has committed an offense in such area is the defendant: Provided, That this shall not apply where a military court of the unit to which the defendant belongs exists in such area, or jurisdiction over such case belongs to a military court of another military branch. |
| (2) | Notwithstanding paragraph (1), the general military court at the Ministry of National Defense or headquarters of each military branch may judge cases where a general-grade officer is a defendant and other important cases. <Amended on Mar. 21, 2017> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 12 (Jurisdiction over Areas under Martial Law) |
A military court designated by the Minister of National Defense shall have jurisdiction prescribed by Martial Law Act over the area under martial law. [This Article Wholly Amended on Dec. 29, 2009]
| Article 13 (Consolidation of Jurisdiction and Exception thereto) |
| (1) | Where several cases having different jurisdictions are related with one another, the military court having jurisdiction over a case may have jurisdiction over other cases: Provided, That in cases of a case under Article 12, of a case where a general-grade officer is a defendant, or the military court of another military branch has jurisdiction, the jurisdictions shall not be consolidated for reasons that such cases are related with one another. <Amended on Mar. 21, 2017> |
| (2) | When the convening authority of the High Military Court has received an application for consolidation of jurisdictions of cases prescribed in the proviso to paragraph (1) from the convening authority of the general military court of the headquarters of another military branch, notwithstanding proviso to paragraph (1), he/she may designate a military court and have it exercise consolidated jurisdiction after hearing the opinions of the convening authority of the general military court of the headquarters of the relevant military branch. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 14 (Transfer of Related Cases) |
Where the related cases are pending at the same military court, not requiring consolidated trial such military court may, by ruling, separate them at the application of military prosecutor and may transfer the cases to another military court having jurisdiction. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 15 (Consolidated Trial of Related Cases) |
Where the related cases are each pending in the different military courts, the military court, which belongs to an immediately higher unit to all such different military courts, may have one of such different military courts conduct consolidated trial by ruling upon the application of a military prosecutor. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 16 (Definition of Related Cases) |
The term "related cases" in this Act means any of the following cases:
| 1. | Several offenses committed by a single person; |
| 2. | An offense committed jointly by several persons; |
| 3. | An offense committed simultaneously by several persons at the same place; |
| 4. | A crime of harboring an offender, crime of destruction of evidence, perjury, crime of false testimony, interpretation or translation, crime concerning stolen goods, crime of failing to report an insurrection, and crime of protecting a deserter, and the crime of the original offender. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 17 (Concurrent Jurisdiction) |
Where one and the same case is pending in several military courts, the court in which public prosecution thereof has been first instituted shall judge such case: Provided, That where no military court belongs to an immediately higher unit to all such several military courts or no military court is common to all such several military courts, the court in which public prosecution has been instituted in the last place may be required to judge such case, by ruling at the application of a military prosecutor or defendant. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 18 (Effect of Changes in Grounds for Ruling on Jurisdiction) |
Jurisdiction shall not change due to changes in the attachment of a defendant after public prosecution has been instituted or changes in any other ground of ruling on jurisdiction: Provided, That this shall not apply where the defendant has obtained the status of a general-grade officer. <Amended on Mar. 21, 2017>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 19 (Application for Transfer of Jurisdiction) |
| (1) | In any of the following cases, military prosecutors may file an application for transfer of jurisdiction of a case to the military court of the higher unit: <Amended on Jan. 6, 2016> |
| 1. | When the competent military court having jurisdiction is unable to exercise its judicial power due to legal reasons or special circumstances; |
| 2. | When it is likely that the impartiality of trial is impractical to be maintained or public peace and order are to be damaged due to the nature of offense, status of a defendant, actual condition of unit, circumstances of litigation and other situations. |
| (2) | In cases under paragraph (1) 2, a defendant may also file an application for the transfer of jurisdiction. |
| (3) | The military court in receipt of an application under paragraphs (1) and (2) shall render a ruling thereon without delay. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 20 (Infringement of Jurisdiction and Effect of Litigation) |
The validity of litigation shall not be affected even if jurisdiction has been infringed.
[This Article Wholly Amended on Dec. 29, 2009]
CHAPTER III JUDGING ORGANIZATION AND STAFF OF MILITARY COURT
| Article 21 (Independence of Military Judicial Officers) |
| (1) | Military judicial officers of military courts shall independently judge according to conscience on the basis of the Constitution and Acts of the Republic of Korea. |
| (2) | No military judicial officers, military prosecutors and defense attorneys shall be subject to disciplinary measures nor be issued any other unfavorable disposition due to any act performed in the course of duty. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 22 (Composition of Military Courts) |
| (1) | A general military court shall consist of one or three military judicial officers. |
| (2) | The High Military Court shall consist of three or five military judicial officers. |
| (3) | Military judges and adjudicators shall become military judicial officers, and each senior military judge shall become the presiding judge. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 23 (Appointment and Attachment of Military Judges) |
| (1) | Military judges shall be appointed by the Chief of Staff of each military branch from among the field-grade or higher ranking military judge advocates under his/her control: Provided, That military judges at the Ministry of National Defense and integrated units under the direct command and operational control of the Ministry of National Defense shall be appointed by the Minister of National Defense from among the affiliated field-grade or higher ranking military judge advocates. <Amended on Jan. 6, 2016> |
| (2) | Notwithstanding the main sentence of paragraph (1), the Minister of National Defense may appoint military judges of the Ministry of National Defense and each military branch from among field-grade or higher ranking military judge advocates affiliated with each military branch after hearing the opinions of the Chief of Staff of each military branch. <Amended on Jan. 6, 2016> |
| (3) | Military judges shall be attached to the Ministry of National Defense or to the headquarters of each military branch, and the criteria for dispatching, holding of concurrent offices, circuit judgement, etc. of military judges shall be prescribed by Presidential Decree, in consideration of circumstances such as ensuring of fair trials and the supply and demand of military judges. <Amended on Jan. 6, 2016> |
| (4) | The term of office of military judges shall be three years, and may be consecutively renewed. <Newly Inserted on Jan. 6, 2016> |
| (5) | A military judge shall neither be removed from office except by a sentence of imprisonment without labor or greater punishment, nor shall he/she be subject to suspension from office, salary reduction, or any other unfavorable treatment except by disciplinary action. <Newly Inserted on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 24 (Appointment and Qualifications of Adjudicators) |
| (1) | Adjudicators shall be appointed by the convening authority from among the field-grade or higher ranking officers meeting the following qualifications: <Amended on Jan. 6, 2016> |
| 1. | Persons with knowledge of law; |
| 2. | Persons with good character and sufficient learning to be a judge. |
| (2) | When a person other than the subordinate of the convening authority is to become an adjudicator, the Chief of Staff of the relevant military branch shall appoint him/her. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 25 (Designation of Judges) |
| (1) | Judges shall be designated by the convening authority. <Amended on Jan. 6, 2016> |
| (2) | Where a convening authority other than the Minister of National Defense, and Chief of Staff of each military branch designates a judge who is an adjudicator, he/she shall obtain approval of Chief of Staff of each military branch, and where a convening authority who is any of Chiefs of Staff of military branches designates a judge who is an adjudicator, he/she shall obtain approval of the Minister of National Defense. <Newly Inserted on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 26 (Judges of General Military Courts) |
| (1) | In a general military court, three military judges shall sit on the bench as judge: Provided, That two military judges and one adjudicator shall sit on the bench as judge in cases designated by the convening authority. <Amended on Jan. 6, 2016> |
| (2) | Notwithstanding paragraph (1), one military judge shall sit on the bench as judge in cases of summary proceedings. <Amended on Jan. 6, 2016> |
| (3) | The convening authority shall designate one chief military judge from among the judges who are military judges. <Newly Inserted on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 27 (Judges of High Military Court) |
| (1) | In the High Military Court, three military judges shall sit on the bench as judge: Provided, That where a case is designated by the convening authority, three military judges and two adjudicators shall sit on the bench as judge. |
| (2) | The convening authority shall designate one of the judges who are military judges as the chief military judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 27-2 (Definition of “Cases Designated by the Convening Authority”) |
“Cases designated by the convening authority” in the proviso to Article 26 (1) and the proviso to Article 27 (1) means cases which require high-level military expertise and experience and are designated by the convening authority as requiring that an adjudicator be appointed as a judge, from among cases where public prosecutions have been instituted only for a crime falling under any of the following: | 1. | A crime provided for in the Military Criminal Act (excluding crimes of rape and sexual harassment under Part II Chapter XV); |
[This Article Newly Inserted on Jan. 6, 2016]
| Article 28 (Ranks of Judges) |
| (1) | Judges shall be coordinate in rank with or higher in rank than defendants: Provided, That this shall not apply to a judge who is a military judge. |
| (2) | When a defendant is a civilian worker attached to the military, paragraph (1) shall apply mutatis mutandis according to his/her grade. |
| (3) | When a defendant is a prisoner of war, paragraphs (1) and (2) shall apply mutatis mutandis. |
| (4) | As for joint defendants with different ranks or grades, the rank of judge shall be determined on the basis of the defendant with the highest rank or grade. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 29 (Changes in Status of Defendants and Ranks of Judges) |
The ranks of judges shall not be affected by the changes in the status of defendants.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 30 (Appeals, etc. and Ranks of Presiding Judges) |
The presiding judge in the judgment of an appeal or retrial shall be coordinate in rank with or higher in rank than the presiding judge in the lower military court in first instance: Provided, That this shall not apply where judges are comprised of military judges only.
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | Military courts shall have clerks and courtroom soldiers. |
| (2) | Interpreters and technicians may be placed in military courts. |
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | Clerks shall be appointed by the Chief of Staff of each military branch from among the officers, warrant officers, noncommissioned officers and civilian employees posted thereat: Provided, That the clerks of the Ministry of National Defense and the integrated units under the direct command and operational control of the Ministry of National Defense shall be appointed by the Minister of National Defense. |
| (2) | Clerks shall participate in trials, prepare and keep court records and other documents, conduct duties according to statues, and engage in the general duties of the military court under orders of a superior officer. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 33 (Courtroom Soldiers) |
| (1) | Courtroom soldiers shall be appointed by the convening authority from among noncommissioned officers and soldiers belonging to a branch which is mainly in charge of investigation, correction, etc. among the basic branches of service under Article 5 (2) of the Military Personnel Management Act (hereinafter referred to as “military police branch”). <Amended on Feb. 4, 2020> |
| (2) | Courtroom soldiers shall guide litigants, organize court, and perform other duties necessary for judicial proceedings under the orders of judges. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 34 (Interpreters) |
| (1) | Interpreters shall be appointed by the convening authority from among officers and civilian workers: Provided, That if deemed specially necessary, persons other than officers or civilian workers may be appointed. |
| (2) | Interpreters shall engage in interpretation and translation under orders of the presiding judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | Technicians shall be appointed by the convening authority from among officers and civilian workers. |
| (2) | Technicians shall engage in the duties concerning technology under the orders of the presiding judge. |
[This Article Wholly Amended on Dec. 29, 2009]
CHAPTER IV PROSECUTION ORGANIZATIONS
| Article 36 (Military Prosecutors’ Offices) |
| (1) | The military prosecutors’ offices shall take charge of prosecution duties. |
| (2) | The military prosecutors’ offices shall be composed of high prosecutors’ offices and general prosecutors’ offices, and high prosecutors’ office shall be established in the Ministry of National Defense and the headquarters of each military branch, and general prosecutors’ offices shall be established in the units in which general military courts are established and in the units under the command of general-grade officers in the organizational chart: Provided, That if necessary, the Minister of National Defense may postpone the establishment of the Military Prosecutors’ Office. <Amended on Mar. 21, 2017> |
| (3) | There shall be established the Ministry of National Defense Prosecutors’ Office which is attached to the Ministry of National Defense, and its head shall be appointed by the Minister of National Defense from among field-grade or general-grade officers who are military judge advocates. <Newly Inserted on Jan. 6, 2016; Mar. 21, 2017> |
| (4) | The Ministry of National Defense Prosecutors’ Office shall exercise overall control over affairs (including the relevant crime intelligence affairs) concerning the high prosecutors’ offices and general prosecutors’ offices established in the Ministry of National Defense. <Amended on Jan. 6, 2016> |
| (5) | High prosecutors’ offices shall have jurisdiction over appeals and complaints against cases subject to the jurisdiction of general prosecutors’ offices attached to each unit falling under the command of the relevant high prosecutors’ offices, and other cases subject to the authority of the relevant high prosecutors’ offices pursuant to any Act: Provided, That the high prosecutors’ office of the headquarters of each military branch may, if necessary, entrust part of their authority to the high prosecutors’ office of the Ministry of National Defense. <Amended on Jan. 6, 2016> |
| (6) | The jurisdiction of general prosecutors’ offices shall correspond to the jurisdiction of the counterpart general military courts: Provided, That the jurisdiction of the general prosecutors’ office established in a unit in which a military court is not established shall cover the following: <Amended on Jan. 6, 2016> |
| 1. | Cases where an immediate subordinate of the head of a unit in which a military prosecutors’ office is established is a suspect, or a person under the direct supervision of such head is a suspect; |
| 2. | Cases where a person attached to any such small unit belonging to a unit in which a prosecutors’ office is established, as is located in an operational area, military area or guard area of such unit is a suspect, or a person under the supervision of such head is a suspect; |
| 3. | Cases where a person present in an operational area, military area, or guard area of a unit in which a prosecutors’ office is established is a suspect, or a person falling under Article 1 of the Military Criminal Act who has committed a crime in such area is a suspect. |
| (7) | Notwithstanding paragraph (6), where the fairness of investigation is deemed difficult to be maintained due to the nature of the crime, the status of the suspect, the current conditions of the relevant unit, the state of investigation, and other circumstances, the heads of the high prosecutors’ offices of the headquarters of military branches may transfer the jurisdiction over the relevant case to the general prosecutors’ office of a higher unit of such relevant unit ex officio or upon the application of a military prosecutor of the general prosecutors’ office of the relevant unit. <Newly Inserted on Jan. 6, 2016> |
| (8) | Notwithstanding paragraphs (6) and (7), the general prosecutors’ offices of both the Ministry of National Defense and the headquarters of military branches may exercise jurisdiction over cases where a general-grade officer is a suspect and other important cases. <Amended on Jan. 6, 2016; Mar. 21, 2017> |
| (9) | Matters necessary for the organization, operation, etc. of the Prosecutors’ Office of the Ministry of National Defense shall be prescribed by Presidential Decree. <Newly Inserted on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 37 (Duties of Military Prosecutors) |
Military prosecutors shall be posted at the head of a unit in which the relevant military prosecutors’ office is established, and their duties shall be as follows: <Amended on Jan. 6, 2016>
| 1. | Investigation into crimes, institution and maintenance of public prosecution; |
| 2. | Direction and supervision of the execution of trials of military courts; |
| 3. | Matters falling within their authority pursuant to other statutes. |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 38 (Direction and Supervision of Military Prosecution Duties by Minister of National Defense) |
The Minister of National Defense shall direct and supervise military prosecutors on the whole as the first and foremost supervisor of the military prosecution duties: Provided, That in specific cases, he/she shall direct and supervise only the Chief of Staff of each military branch. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 39 (Direction and Supervision of Military Prosecution Duties by Chief of Staff of Each Military Branch) |
The Chief of Staff of each military branch shall take overall charge of military prosecution duties under the jurisdiction of general prosecutors’ offices of subordinate units as the director and supervisor of military prosecution duties of each military branch, and direct and supervise military prosecutors posted thereat. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 40 (Direction and Supervision of Military Prosecution Duties by Heads of Units in which Military Prosecutors’ Office Is Established) |
The head of a unit in which a prosecutors’ office is established shall take charge of military prosecution duties under command, and direct and supervise military prosecutors posted thereat. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 41 (Appointment of Military Prosecutors) |
| (1) | Military prosecutors shall be appointed by the Chief of Staff of each military branch from among affiliated military judge advocates posted thereat: Provided, That military prosecutors of the Ministry of National Defense and the integrated units under the direct command and operational control of the Ministry of National Defense shall be appointed by the Minister of National Defense from among military judge advocates posted thereat. <Amended on Jan. 6, 2016> |
| (2) | Notwithstanding the main sentence of paragraph (1), the Minister of National Defense may appoint military prosecutors of the Ministry of National Defense and each military branch from among military judge advocates posted at each military branch after hearing the opinions of the Chief of Staff of each military branch. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 42 (Performance of Military Prosecutor’s Duties by Proxy) |
The Chief of Staff of each military branch may have apprentice military judge advocates perform the duties of military prosecutor by proxy. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 43 (Military Judicial Police Officers) |
Any of the following persons shall investigate offenses as a military judicial police officer: <Amended on Feb. 4, 2020>
| 1. | Officers, warrant officers and noncommissioned officers of a military police branch, and persons engaged in criminal investigation duties, who are civilian workers posted to units in charge of criminal investigation duties as prescribed by statutes and regulations; |
| 2. | Officers, warrant officers, noncommissioned officers and civilian workers engaged in security duties, who are posted to units in charge of military security duties, which are prescribed by the statutes and regulation related to the organization of National Armed Forces, among the units established under Article 2 (3) of the Act on the Organization of National Armed Forces (hereinafter referred to as "defense security support unit"); |
| 3. | Persons designated by the Director of the National Intelligence Service as a military judicial police officer, who are staff members of the National Intelligence Service; |
| 4. | Investigators of the prosecutors’ office. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 44 (Limits of Investigation of Military Judicial Police Officers) |
Military judicial police officers shall investigate cases under the jurisdiction of military courts according to the following classifications:
| 1. | Persons prescribed in subparagraph 1 of Article 43: Offenses other than those prescribed in subparagraphs 2 and 3; |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 45 (Military Judicial Police Officers and Orders of Superior Officers) |
Military judicial police officers shall obey official orders of superior officers concerning investigation into crime.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 46 (Assistant Military Judicial Police Officers) |
Any of the following persons shall support investigations under orders of military prosecutors or military judicial police officers as an assistant military judicial police officer: <Amended on Jan. 6, 2016; Feb. 4, 2020>
| 1. | Soldiers posted at the military police branch (hereinafter referred to as "military police"); |
| 2. | Soldiers posted at the defense security support unit, and engaged in security duties; |
| 3. | Staff members of the National Intelligence Service designated by the Director of the National Intelligence Service as an assistant military judicial police officer. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 47 (Staff and Duties of Military Prosecutors’ Office) |
| (1) | The Military Prosecutors’ Office shall have prosecution investigators and prosecution clerks. |
| (2) | Article 32 (1) shall apply mutatis mutandis to the appointment of prosecution investigators and prosecution clerks. |
| (3) | Prosecution investigators shall support military prosecutors and investigate offenses under the jurisdiction of military prosecutors. <Amended on Jan. 6, 2016> |
| (4) | Prosecution clerks shall engage in the following duties under orders of military prosecutors: <Amended on Jan. 6, 2016> |
| 1. | Duties concerning investigation; |
| 2. | Preparation and preservation of criminal records; |
| 3. | Duties concerning the execution of trials; |
| 4. | Other duties concerning prosecution administration. |
[This Article Wholly Amended on Dec. 29, 2009]
PART II JUDICIAL PROCEEDINGS
CHAPTER I GENERAL PROVISIONS
SECTION 1 Exclusion, Challenge and Abstention
| Article 48 (Grounds of Exclusion) |
Any of the following military judicial officers shall be excluded from the exercise of his/her duties: <Amended on Jan. 6, 2016>
| 1. | Where he/she is a victim; |
| 2. | Where he/she is or has been the relative of a defendant or victim; |
| 3. | Where he/she is the legal representative or guardian of a defendant or victim; |
| 4. | Where he/she has become the witness or expert witness or the representative of a victim, with regard to the relevant case; |
| 5. | Where he/she has become the representative, defense attorney or assistant of a defendant with regard to the relevant case; |
| 6. | Where he/she has performed the duties of convening authority, military prosecutor or military judicial police officer with regard to the relevant case; |
| 7. | Where he/she has participated in the lower court judgment or in the examination and hearing which are the basis of such judgment with regard to the relevant case. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 49 (Grounds of Challenge and Persons Eligible therefor) |
| (1) | In any of the following cases, military prosecutors or defendants may challenge a judge: <Amended on Jan. 6, 2016> |
| 1. | When he/she falls under any of the subparagraphs of Article 48; |
| 2. | When it is feared that he/she may administer justice partially. |
| (2) | A defense attorney may file a motion for challenge against a judge only when such motion does not run counter to the express will of the defendant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 50 Deleted. <Jun. 9, 2020> |
| Article 51 (Jurisdiction over Motion for Challenge) |
| (1) | The motion for challenge against a judge shall be filed with the military court to which such judge belongs, and the motion for challenge against a commissioned judge or entrusted judge shall be filed with such judge. |
| (2) | Grounds of challenge shall be explained in writing within three days from the date a motion for challenge was filed. <Amended on Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 52 (Dismissal and Handling of Motion for Challenge) |
| (1) | When a motion for challenge is evidently aimed at delaying proceedings or is in violation of Article 51, the military court or judge in receipt of such motion shall dismiss it by ruling. <Amended on Jun. 9, 2020> |
| (2) | The challenged judge shall submit a written opinion on the motion for challenge without delay except in the cases under paragraph (1). |
| (3) | If the challenged judge recognizes such motion for challenge as reasonable in cases under paragraph (2), such motion for challenge shall be deemed to have been ruled reasonable. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 53 (Trials on Motion for Challenge) |
| (1) | A motion for challenge shall be ruled by the military court to which such challenged judge belongs. |
| (2) | The challenged judge shall not participate in the ruling prescribed in paragraph (1). |
| (3) | When the military court to which such challenged judge belongs fails to constitute a military court, the military court in the next higher unit shall render a ruling. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 54 (Motion for Challenge and Suspension of Litigation) |
If a motion for challenge is received, proceedings shall be suspended except in cases under Article 52 (1): Provided, That in cases of urgency, this shall not apply. [This Article Wholly Amended on Dec. 29, 2009]
| Article 55 (Dismissal of Motion for Challenge and Immediate Appeal) |
| (1) | An immediate appeal may be filed against a ruling on a motion for challenge. |
| (2) | An immediate appeal against a ruling on dismissal prescribed in Article 52 (1) shall not have the effect of suspending the execution of judgment. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 56 (Replacement of Judges) |
If a judge is excluded or a ruling recognizing that a motion for challenge is reasonable is rendered, the convening authority shall replace such judge.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 57 (Reasons, etc. for Abstention) |
| (1) | When a judge considers a cause falling under any subparagraph of Article 49 (1) exists, he/she shall report his/her intention to abstain from administering justice to the convening authority. |
| (2) | If the convening authority recognizes that the report prescribed in paragraph (1) is reasonable, he/she shall replace the judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 58 (Exclusion, Challenge and Abstention of Clerks, etc.) |
| (1) | The provisions of this Section (excluding subparagraph 7 of Article 48) shall apply mutatis mutandis to the clerks and interpreters of military courts. |
| (2) | A challenge against clerks and interpreters pursuant to paragraph (1) shall be ruled by the military court to which such clerks and interpreters belong. |
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 2 Defense and Assistance
| Article 59 (Persons Authorized to Appoint Defense Attorneys) |
| (1) | A defendant or suspect may appoint a defense attorney. |
| (2) | The legal representative, spouse, lineal relatives and siblings of a defendant or suspect may independently appoint a defense attorney. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 60 (Qualifications for Defense Attorneys and Special Defense Attorneys) |
A defense attorney shall be appointed from among attorneys-at-law: Provided, That in cases of special circumstances, a person other than an attorney-at-law may be appointed as a defense attorney with the leave of the competent military court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 61 (Effects of Appointment of Defense Attorneys) |
| (1) | The appointment of defense attorney shall be submitted to the court at each level in writing with the name and seal, jointly put thereon with the defense attorney. |
| (2) | The appointment of defense attorneys effected prior to the institution of public prosecution shall remain valid in the first instance. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 61-2 (Representative Defense Attorney) |
| (1) | If several defense attorneys exist, the presiding judge may designate a representative defense attorney at the application of the defendant, suspect or defense attorneys, and revoke or change such designation. |
| (2) | Where no application prescribed in paragraph (1) is filed, the presiding judge may designate a representative defense attorney ex officio, and revoke or change such designation. |
| (3) | The number of representative defense attorneys shall not exceed three. |
| (4) | Notification to or service of documents on a representative defense attorney shall be binding upon all relevant defense attorneys. |
| (5) | Paragraphs (1) through (4) shall apply mutatis mutandis to cases where the military prosecutor designates a representative defense attorney if several defense attorneys represent a suspect. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 62 (Public Defenders) |
| (1) | If no defense attorney represents a defendant, the military court shall select a defense attorney ex officio. |
| (2) | The defense attorney to be selected pursuant to paragraph (1) shall be selected from among persons who are attorneys-at-law, officers admitted to the bar or apprentice judge advocates, and have not been involved in the relevant case: Provided, That where it is difficult to select a defense attorney from among attorneys-at-law or officers admitted to the bar, the general military court may select an officer with knowledge of law as a defense attorney. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 63 (Interview, etc. with Defendants and Suspects) |
A defendant or a person intending to be a defense attorney may have an interview with defendants or suspects who have been taken into custody, deliver documents or articles to the defendants or suspects or receive documents or articles therefrom, and have a physician treat such defendants or suspects.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 64 (Perusal or Duplication of Documents and Evidence) |
| (1) | A defendant or defense attorney may peruse or duplicate relevant documents or evidence relating to pending cases. |
| (2) | Paragraph (1) shall also apply to the legal representative of a defendant, special defense attorney under Article 60, assistant under Article 66, or spouse, lineal relatives, or siblings who have submitted an attorney's letter prepared by the defendant and a document certifying their status. |
| (3) | Where it is feared to seriously harm the security of life or body of a party involved in the case, including a victim or a witness, the presiding judge may take protective measures before the inspection or copying referred to in paragraphs (1) and (2) so that the personal information, such as name, etc. of a party involved in the case, shall not be disclosed. <Newly Inserted on Jun. 9, 2020> |
| (4) | The method, procedure, and other necessary matters for the protection of personal information under paragraph (3) shall be prescribed by the Supreme Court Regulations. <Newly Inserted on Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 65 (Independent Litigation by Defense Attorneys) |
A defense attorney may conduct litigation independently: Provided, That this shall not apply where any other provision is prescribed by Acts.
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | The legal representative of a defendant or suspect, spouse, lineal relatives or siblings may become an assistant. |
| (2) | Where no person capable of acting as an assistant exists or where a person is unable to act as an assistant due to disability, etc., a person who has a reliable relationship with a criminal defendant or a criminal suspect may act as his/her assistant. <Newly Inserted on Jun. 9, 2020> |
| (3) | A person who intends to become an assistant shall report his/her purport to each level of court. <Amended on Jun. 9. 2020> |
| (4) | An assistant may independently conduct litigation unless such acts run counter to the intention expressed by a defendant or suspect: Provided, That this shall not apply where any other provision is prescribed by Acts. <Amended on Jun. 9. 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 67 (Opening Judgment to Public) |
| (1) | The hearings and sentence of judgment shall be open to the public: Provided, That only when such hearings and sentence are likely to disturb the public peace and order, or there is a need to protect military secrets, the hearings of judgment shall be allowed not to be open to the public by ruling of the military court. |
| (2) | The ruling under the proviso to paragraph (1) shall be notified by clearly stating the reasons therefor. |
| (3) | Notwithstanding the proviso to paragraph (1), the presiding judge may allow appropriate persons to appear in the court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 67-2 (Places of Sessions) |
| (1) | Public trials shall be held at courts. |
| (2) | The convening authority may, if necessary, hold a session of court at a place outside the court. |
[This Article Newly Inserted on Jan. 6, 2016]
| Article 68 (Keeping Order at Courts) |
| (1) | The presiding judge shall maintain order at court. |
| (2) | The presiding judge may prohibit persons who are likely to disrupt the dignity and order of the court from entering the court, order such persons out of the court, or issue orders necessary to maintain order at court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 68-2 (Prohibition of Video Recording) |
No one shall record video tapes, take photographs, broadcast over a network, etc. in the court without permission of the presiding judge.
[This Article Newly Inserted on Dec. 29, 2009]
| Article 68-3 (Request for Dispatch of Military Policemen) |
| (1) | When the presiding judge recognizes it necessary to maintain order at court, he/she may request the head of affiliated military police unit to dispatch military policemen irrespective of whether it is before or after opening of proceedings. <Amended on Feb. 4, 2020> |
| (2) | The military policemen dispatched according to requests prescribed in paragraph (1) shall be under the command of the presiding judge concerning the maintenance of order. <Amended on Feb. 4, 2020> |
[This Article Newly Inserted on Dec. 29, 2009]
[Title Amended on Feb. 4, 2020]
| Article 68-4 (Court-ordered Confinement, etc.) |
| (1) | The military court may, ex officio, punish a person who violates prohibition or order prescribed in Article 68 (2) inside or outside of court, violates Article 68-2, or obstructs hearings in the court or markedly injured the prestige of trial by violent language, disturbance, etc. by court-ordered confinement for up to 20 days, or by an administrative fine up to one million won, or both. |
| (2) | The military court may have military court personnel, courtroom soldiers or military policemen immediately arrest violators for court-ordered confinement prescribed in paragraph (1), and hold a court for the punishment of court-ordered confinement for up to 24 hours from arrest or order immediate release if the court proceedings for the punishment of confinement is not held. <Amended on Feb. 4, 2020> |
| (3) | The court-ordered confinement shall be executed by detention in the military prison or military pre-trial confinement facility. |
| (4) | The court-ordered confinement shall be executed prior to detention and sentence due to other cases of the confined person, and the detention and execution of sentence due to other cases of the confined person shall be suspended during the execution of court-ordered confinement and the proceedings of the original trial in which the confined person is the principal shall be suspended: Provided, That where considerable reasons exist, the military court may order the continuance of proceedings. |
| (5) | A complaint or special complaint may be filed against the judgment prescribed in paragraph (1). |
| (6) | The procedures for judgment prescribed in paragraph (1) and other necessary matters shall be prescribed by the Supreme Court Regulations. |
[This Article Newly Inserted on Dec. 29, 2009]
| Article 69 (Conference on Judgment) |
| (1) | The conference on judgment shall not be open to the public. |
| (2) | Unless otherwise prescribed by Acts, the conference on judgment shall rely on the majority opinion of the judges. |
| (3) | Where the opinions of the judges are divided into three or more theories and thus no opinion holds a majority, the number of votes of the favorable opinion for the defendant shall be added to the number of votes of the most unfavorable opinion for the defendant, one after another, until such number reaches a majority and then the most favorable opinion for the defendant from among them shall be followed. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 70 (Responsibility, etc. to State Opinions) |
| (1) | Judges shall not refuse to state their opinions on matters to be adjudged. |
| (2) | The order of stating opinions by the military judicial officers shall be from the judge lowest in rank: Provided, That where special needs exist according to matters to be adjudged, the presiding judge may determine differently. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 71 (Criminal Minors) |
| (1) | Judgment shall be rendered through oral proceedings except as otherwise prescribed by Acts. |
| (2) | A ruling or order may be issued without oral proceedings. |
| (3) | Where a ruling or order is issued, if necessary, the court may make an examination of facts. |
| (4) | An examination under paragraph (3) may be ordered to a military judge, or may be commissioned to a military judge of another military court or a judge of a local court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 72 (Method of Court Records) |
Judgment shall be rendered by court records prepared by a military judge who is a judge: Provided, That where a ruling or order is to be notified, it may be recorded in the protocol without preparing court records.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 73 (Reasons for Judgment) |
Reasons for judgment shall be clearly stated: Provided, That this shall not apply to a ruling or order for which appeal is not permitted.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 73-2 (Effect, etc. of Sentencing Criteria of the Supreme Court) |
| (1) | Military judges shall respect the sentencing criteria referred to in Part 8 of the Court Organization Act when they choose the kinds of punishment and determine criminal sentences: Provided, That the sentencing criteria shall not have the legal binding power. |
| (2) | Where any military court hands down a judgment in deviation of the sentencing criteria, the court shall enter the grounds of sentencing in its written judgment: Provided, That the same shall not apply to a case where the court hands down any judgment according to the summary proceeding or the proceeding of summary judgment. |
[This Article Newly Inserted on Jan. 6, 2016]
| Article 74 (Necessary Entry in Court Records) |
| (1) | Unless otherwise prescribed by law, the name, age, rank, service number, resident registration number, post or occupation, and dwelling shall be entered in the court records. |
| (2) | The official position and name of such a military prosecutor and the name of such a defense attorney as have participated in the trial shall be stated in the written judgment. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 75 (Signature, etc. in Written Decision) |
| (1) | The judge who has administered justice shall sign and seal on the court records. |
| (2) | If the presiding judge is unable to sign and seal on the court records, another judge shall sign and seal, stating grounds thereof; if a judge other than the presiding judge is unable to sign and seal on the court records, the presiding judge shall state the grounds thereof and sign and seal on the court records. |
| (3) | Name and seal may be affixed on the written judgment and on the court record other than the one prescribed by the Supreme Court Regulations in place of a signature and seal prescribed in paragraphs (1) and (2). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 76 (Method of Pronouncement and Notification of Judgment) |
The pronouncement and notification of judgment shall be made by means of court records in the courtroom, and, in other cases, by the service of the certified copy of court records or by other appropriate methods: Provided, That this shall not apply to cases otherwise prescribed by Acts.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 77 (Pronouncement and Notification of Judgment) |
| (1) | The pronouncement and notification of judgment shall be made by the presiding judge. |
| (2) | When a judgment is pronounced, the presiding judge shall read the written judgment and explain the gist of reasons. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 78 (Cases Requesting Direction of Execution by Military Prosecutors) |
As for judgment in need of the direction of execution by a military prosecutor, a certified copy or abstract of court records or protocol in which the judgment is entered shall be sent to the military prosecutor within 10 days from the date of pronouncement or notification of judgment: Provided, That this shall not apply to cases otherwise prescribed by Acts. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 79 (Request for Certified Copy or Extract of Court Records, etc.) |
A defendant or any other person involved in the litigation may request to issue a certified copy or extract of court records after paying expenses.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 80 (Preparation of Certified Copy or Extract of Court Records, etc.) |
The certified copy or extract of court records or protocol in which judgment is entered shall be prepared according to the original: Provided, That where unavoidable reasons exist, it may be prepared according to a certified copy.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 81 (Non-Disclosure of Documents concerning Proceedings) |
No documents concerning proceedings shall be made public prior to the opening of court proceedings for public trial unless public interests or other considerable reasons exist.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 82 (Method of Preparing Protocols) |
| (1) | When a defendant, suspect, witness, expert witness, interpreter or translator is examined, the court clerk who has participated therein shall prepare a protocol. |
| (2) | Protocols shall state the following matters: |
| 1. | The statement of the criminal defendant, the criminal suspect, a witness, an expert witness, an interpreter, or a translator; |
| 2. | Where the witness, expert witness, interpreter or translator fails to take an oath, reasons therefor. |
| (3) | Protocols shall be read aloud to or be perused by persons who have made a statement and the veracity of the contents shall be confirmed by such persons. |
| (4) | If a person who has made a statement requests any correction or alteration of the contents of statement, such statement shall be entered in the protocol. |
| (5) | If a military prosecutor, defendant, suspect or defense attorney who has participated in the examination raises an objection to the accuracy of protocol, the gist of such statement shall be entered in the protocol. <Amended on Jan. 6, 2016> |
| (6) | In cases under paragraph (5), the presiding judge or military judge may have opinions concerning such statement entered in the protocol. |
| (7) | A person who makes a statement shall be required to sign and seal on the protocol after affixing a seal on the folds of each overlapping page of the protocol: Provided, That where the person who has made a statement refuses to sign and seal, the reason shall be entered therein. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 83 (Protocol of Evidence Inspection, etc.) |
| (1) | A protocol of inspection of evidence, search or seizure shall be prepared. |
| (2) | Pictures, drawings or photographs may be attached to the protocol of inspection of evidence to clarify the present condition of the object to be inspected. |
| (3) | The protocol of seizure shall contain the kinds, characteristics of external shape and number. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 84 (Necessary Entries in Various Protocols) |
The date, time and place of examination or disposition shall be entered in the protocol under Articles 82 and 83 and the person who has conducted such examination or disposition and the clerk who has participated in such examination or disposition shall affix name and seal or sign thereon: Provided, That where a military court has conducted examination or disposition on a day other than a court date, the presiding judge, or military judge and clerk who has participated therein shall affix their names and seals or sign thereon. [This Article Wholly Amended on Dec. 29, 2009]
| Article 85 (Necessary Entries in Trial Records) |
| (1) | A trial record shall be prepared by a clerk who has participated in the judicial proceedings on the court date. |
| (2) | Trial records shall contain the following matters and all other judicial proceedings: <Amended on Jan. 6, 2016> |
| 1. | Date and time of the public trial and name of the military court; |
| 2. | Positions, ranks and names of military judicial officers, military prosecutors and clerks; |
| 3. | Names of the defendant, the legal representative, the defense attorney, the assistants and the interpreters; |
| 4. | Whether the defendant was present; |
| 5. | Whether the trial has been open to the public and, if it has not been open to the public, reasons why it has been held in closed session; |
| 6. | Reading of a statement of the facts charged or the written indictment changed; |
| 7. | The fact that the defendant was given an opportunity to make a statement which is necessary to protect his/her rights, and the fact that he/she has made a statement; |
| 8. | Matters prescribed in each subparagraph of Article 82 (2); |
| 9. | When an examination of evidence has been made, documents constituting evidence and articles of evidence, and the method of examination; |
| 10. | Inspection of evidence or seizure conducted in the courtroom; |
| 11. | The gist of oral statement; |
| 12. | Matters ordered to be entered in the trial record by the presiding judge or military judge or matters permitted to be entered by the presiding judge or military judge at the request of a person having an interest in the litigation; |
| 13. | The fact that an opportunity to make a final statement was given to the defendant or defense attorney, and the fact that he/she has made a statement; |
| 14. | The fact that judgment or trial has been pronounced or notified. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 86 (Special Cases concerning Preparation of Trial Records) |
Article 82 (3) through (7) shall not apply to the preparation of trial records and the protocol of interrogation of a witness on a date other than the court date: Provided, That where requests of the person who has made a statement exist, the part concerning such statement shall be read aloud before such person: where requests for correction or alteration exist, such statement shall be recorded. [This Article Wholly Amended on Dec. 29, 2009]
| Article 87 (Signature, etc. on Trial Records) |
| (1) | The presiding judge, military judge and a clerk who has participated in the public trial shall affix their names and seals or sign on the trial record. |
| (2) | If the presiding judge or military judge is unable to affix his/her name and seal or sign on the trial record, another judge shall affix his/her name and seal or sign on the trial record stating grounds thereof; when all judges are unable to affix their names and seals or sign on the trial record, the clerk who has participated in the public trial shall affix his/her name and seal or sign thereon together with a note explaining reasons therefor. |
| (3) | When a clerk is unable to put name and seal or signature on the trial record, the person who is to put name and seal or signature pursuant to paragraphs (1) and (2) shall put name and seal or signature together with grounds thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 87-2 (Adjustment, etc. of Trial Records) |
| (1) | Trial records shall be adjusted promptly after each court date. |
| (2) | The outline of main points in the preceding hearing of public trial shall be notified according to the trial record on the succeeding court date: Provided, That where the trial records of the preceding public trial has not been adjusted by the court date of the next public trial, such outline may be notified without complying with the trial record. |
| (3) | The military prosecutor, defendant or defense attorney may make a motion to alter the contents of trial records or raise an objection. <Amended on Jan. 6, 2016> |
| (4) | If a motion or objection under paragraph (3) has been made or raised, a record describing the purport of such motion or objection and the opinion thereon of the presiding judge shall be attached to the trial record. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 87-3 (Stenography, Audio Recording and Video Recording in Trial Courts) |
| (1) | Upon a request of a military prosecutor, defendant or defense attorney, unless any extenuating circumstance exists, the military court may have a stenographer take stenographic notes, or make audio or video recordings (including those with sound recordings; hereinafter the same shall apply), using an audio or video recording system, of all or part of the hearings in the trial court and, if necessary, may, ex officio, order to take such notes or make such recordings. <Amended on Jan. 6, 2016> |
| (2) | The military court shall store stenographic notes, audio recordings or video recordings apart from trial record. |
| (3) | A military prosecutor, defendant or defense attorney may request, to the military court, copies of stenographic notes, audio recordings or video recordings prescribed in paragraph (2) at their own expense. <Amended on Jan. 6, 2016> |
[This Article Newly Inserted on Jan. 17, 2008]
| Article 88 Deleted. <Jun. 9, 2020> |
| Article 88-2 (Defendants’ Right, etc. to Peruse, etc. Trial Records) |
| (1) | Defendants may request to peruse or duplicate trial records. |
| (2) | If a defendant is unable to read the trial records, he/she may request the trial records to be read aloud to him/her. |
| (3) | If requests prescribed in paragraphs (1) and (2) are not met, such trial record shall not be used as evidence of guilt. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 89 (Probative Value of Trial Records) |
Those recorded in the trial record as judicial proceedings on the court date shall be proven with such trial record only.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 90 Deleted. <Jun. 9, 2020> |
| Article 91 (Putting Names and Seals, etc. when Public Officials Prepare Papers) |
| (1) | Unless prescribed otherwise by Acts, the date of preparation and name of the public institution to which a public official belongs shall be inserted on papers prepared by such public official, and the name and seal or signature of such public official shall be placed thereon. |
| (2) | A seal shall be placed on the folds of each overlapping page of such papers, or measures corresponding thereto shall be taken. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 92 (Preparation of Papers by Public Officials) |
| (1) | When a public official prepares papers, he/she shall not be allowed to correct letters therein. |
| (2) | When any insertion or elimination or entry outside of column is made, seal and the number of letters shall be inserted thereon. Provided, That the letters of any eliminated part shall be left intact for legibility. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 93 (Preparation of Papers by Non Pubic Officials) |
When a person, other than a public official, prepares papers, he/she shall insert the date of preparation, and put his/her name and seal or sign thereon. If no seal is available, he/she shall put a thumbprint. <Amended on Dec. 18, 2018>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 93-2 (Perusal or Duplication of Records of Finalization of Trial) |
| (1) | For the purpose of remedy against infringement of rights, academic research or public benefit, any person may file an application for the perusal or duplication of court records of a case of which proceedings have been finalized with the Military Prosecutors’ Office that stores such court records. |
| (2) | In any of the following cases, the military prosecutor may restrict perusal or duplication of all or part of court records: Provided, That this shall not apply where it is deemed that a party to the litigation or a third party has justifiable reasons for perusal or duplication: <Amended on Jan. 6, 2016> |
| 1. | Where the trial was not open to the public; |
| 2. | Where the disclosure of court records is likely to seriously harm national security, public morals, maintenance of public order or public welfare; |
| 3. | Where the disclosure of court records is likely to seriously defame a party to the case, inflict harm on such party’s privacy, or the security of life or body of such party, or impair the peace of such party’s life; |
| 4. | Where the disclosure of court records is likely to facilitate the destruction of evidence or escape of a person who is complicit in the case, or to have significant influence on the trial of the case; |
| 5. | Where the disclosure of court records is likely to seriously obstruct the reformation or rehabilitation of the defendant; |
| 7. | Where the relevant party to the case does not consent to the disclosure of court records. |
| (3) | Where a military prosecutor places a restriction on perusal or duplication of court record pursuant to paragraph (2), he/she shall notify the applicant of such restriction, clearly stating reasons therefor. <Amended on Jan. 6, 2016> |
| (4) | If the military prosecutor recognizes it necessary for the preservation of court records, he/she may allow perusal or duplication of the certified copy of court records: Provided, That where perusal or duplication of the original copy is necessity, this shall not apply. <Amended on Jan. 6, 2016> |
| (5) | A person who perused or duplicated court records shall not perform the following acts using the matters that he/she has learned in the course of perusal or duplication: |
| 1. | Harming public order or public morals; |
| 2. | Obstructing the reformation or rehabilitation of the defendant; |
| 3. | Defaming a party to the case or impairing the peace of life thereof. |
| (6) | If a person who files an application for the perusal or duplication of court records pursuant to paragraph (1) is dissatisfied with the disposition of the military prosecutor concerning perusal or duplication, he/she may file an application for the revocation or alteration of such disposition with the military court corresponding to the Military Prosecutors’ Office keeping such records. <Amended on Jan. 6, 2016> |
| (7) | Articles 467 and 468 shall apply mutatis mutandis to the application for objection prescribed in paragraph (6). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 93-3 (Perusal and Copy of Judgment Document on Confirmation, etc.) |
| (1) | Anyone may peruse and copy (including perusal and copy by electronic ways, such as internet or other computing information processing systems; hereinafter the same shall apply in this Article) judgment documents, etc. in military courts that keep judgment documents in which the judgment of a case is final, or copies thereof, evidence lists or copies thereof, or documents or names of objects that are submitted to a military court by prosecutors, defendants, or attorneys, or information corresponding thereto (hereinafter referred to as "judgment documents, etc."): Provided, That the foregoing may be restricted where a military court falls under any of the following subparagraphs: <Amended on Jan. 6, 2016> |
| 1. | Where the trial was not open to the public; |
| 3. | Where the disclosure of judgment documents, etc. is likely to allow persons in accomplice relations, etc. to destroy any evidence or flee readily, or to substantially influence the trials of related cases; |
| 4. | Where it is obvious that the disclosure of judgment documents, etc. is likely to harm the national security; |
| 5. | Where a person involved in the litigation applies for the restrictions on disclosing judgment documents, etc., which falls under any of the followings: |
| (a) | Where the disclosure of judgment documents, etc. is likely to considerably harm the honor, privacy, security of life and body, and peace of everyday life of a person involved in a case; |
| (2) | Despite the proviso to paragraph (1), a person involved in the litigation or an interested third person who has justifiable grounds for perusal and copy of judgment documents, etc. may apply for perusal and copy of such documents to a clerical official of a military court who is keeping the judgment documents, etc. |
| (3) | Where a person who has applied for perusal and copy of judgment documents, etc. pursuant to paragraph (2) is dissatisfied with the clerical official's disposition concerning perusal and copy, he/she may apply for the revocation or alteration of such disposition, in writing, to a military court that keeps judgment documents, etc. |
| (4) | Articles 466 and 467 shall apply mutatis mutandis to application for dissatisfaction under paragraph (3). |
| (5) | A clerical official shall take protective measures prescribed by the Supreme Court Regulations in order to prevent personal information such as names indicated in judgment documents, etc. from being disclosed before perusal and copy under paragraphs (1) and (2). |
| (6) | A clerical official who has taken protective measures pursuant to paragraph (5) shall not assume any civil or criminal responsibility for perusal and copy under paragraphs (1) and (2), unless he/she acts willfully or by gross negligence. |
| (7) | The methods of, and procedures for, perusal and copy of judgment documents, etc., application of a person involved in the litigation for the restriction on disclosing information, protective measures on personal information, and other necessary measures shall be prescribed by the Supreme Court Regulations. |
[This Article Newly Inserted on Jan. 7, 2014]
SECTION 5 Service of Documents
| Article 94 (Service by Clerks) |
Duties of serving document shall be handled by clerks, and may be entrusted to the assistant military judicial police officers: Provided, That in cases of documents dispatched by military judicial police officers, such documents shall be served by those who prepare the documents.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 95 (Service by Mail) |
Documents may be served by mail. In such cases, documents shall be deemed to have been served when such documents reach the destination.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 96 (Entrusting Service of Documents) |
The clerks of military court, Grade IV, V, VI or VII officials of the court (hereinafter referred to as "Grade V officials of the court, etc.") having jurisdiction over the area in which documents are to be served may be entrusted with serving documents. <Amended on Jun. 9, 2020>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 97 (Service on Persons in Barracks, etc.) |
| (1) | The service of document on persons in the barracks, military buildings or warships shall be entrusted to the heads of such barracks, military buildings or warships, or persons who stand in place of such heads. |
| (2) | The service of documents on persons, among those prescribed in Article 2 (1), in a place other than the places prescribed in paragraph (1) may be entrusted to the heads of the institutions to which such persons belong, supervisors or persons corresponding thereto. |
| (3) | The service of documents prescribed in paragraphs (1) and (2) shall be verified with certificates indicating that the documents have been delivered to the principals. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 98 (Report for Service of Document) |
| (1) | Where a person other than those prescribed in Article 2 (1) is the defendant, representative, defense attorney or assistant and the dwelling or office thereof does not exist in the jurisdiction of a military court, such person shall appoint another person whose dwelling or office is in the jurisdiction of a military court as the receiver of documents to be served and file a report signed by both him/her and the receiver. |
| (2) | The receiver shall be deemed the principal with regard to the service of documents, and the dwelling or office thereof shall be deemed the dwelling or office of the principal. |
| (3) | Paragraphs (1) and (2) shall not apply to those who are physically detained. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 99 (Service on Military Prosecutors) |
The service of documents to a military prosecutor shall be required to the Military Prosecutors’ Office to which he/she is posted. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 100 (Cause of Service by Public Notice) |
| (1) | If the dwelling, office or whereabouts of a defendant is unknown, service by publication may be used. |
| (2) | Where a defendant is in a place beyond jurisdiction, thus papers cannot be served on him/her by other means, paragraph (1) shall also apply. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 101 (Method of Service by Public Notice) |
| (1) | Service by publication can be used only when the military court issues an order. |
| (2) | When service by publication is used, court clerks shall keep documents to be served and announce the cause thereof on the bulletin of the military court. |
| (3) | Military courts may publicly announce the cause prescribed in paragraph (2) in the daily newspapers or the Official Gazette. |
| (4) | The first service by publication shall become valid two weeks after the date public announcement prescribed in paragraph (2) is made: Provided, That in cases of service by publication from the second one onward, such service by publication shall become valid after five days. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 102 (Application Mutatis Mutandis of the Civil Procedure Act) |
Unless prescribed otherwise concerning service by publication by Acts, the Civil Procedure Act shall apply mutatis mutandis. [This Article Wholly Amended on Dec. 29, 2009]
| Article 103 (Computation of Period of Time) |
| (1) | When a period is calculated, the period shall commence immediately in cases of being calculated on an hourly basis; the first day shall not be counted in cases of being calculated on a daily, monthly or yearly basis: Provided, That where prescription and period of detention are calculated, the first day shall be counted as one day irrespective of the number of hours. |
| (2) | A period set annually or monthly shall be counted according to the calendar. |
| (3) | When a period ends on a public holiday or Saturday, such day shall not be counted in the period: Provided, That where prescription and period of detention are calculated, such day shall be counted in the period. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 104 (Extension of Legal Period) |
The legal period may be extended by the Supreme Court Regulations in accordance with the distance between the location of dwelling or office of the person who is to institute a litigation and the jurisdiction of a military court with having regard to inconvenience in the transportation and communications.
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 7 Summons and Detention of Defendants
Military courts may have jurisdiction to summon defendants.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 106 (Issuance of Writ of Summons) |
When a defendant is to be summoned, a writ of summons shall be issued.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 107 (Form of Summons) |
The writ of summons shall contain the name and address, attachment, rank, service number, resident registration number, and dwelling of a defendant, name of a crime, time and place of appearance, and statement that a detention warrant may be issued recognizing that he/she is likely to flee if he/she does not present himself/herself without justifiable reasons, and the presiding judge, military judge, entrusted military judge or entrusted judge shall put his/her name and seal or sign thereon. <Amended on Dec. 18, 2018>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 108 (Service of Summons) |
| (1) | A writ of summons shall be served. |
| (2) | Where a defendant submits a document stating that he/she will be present on the next court date, or the court sets a court date and orders the defendant to be present on such court date, it shall have the same effect as the service of a writ of summons. |
| (3) | Where attendance prescribed in paragraph (2) is ordered, the gist thereof shall be entered in the court records. |
| (4) | The defendants in barracks, military buildings or warships shall be summoned by notifying the heads of the barracks, military buildings or warships, or persons who stand in for such heads. |
| (5) | The detained defendants shall be summoned by notifying the prison officers. |
| (6) | In cases under paragraphs (4) and (5), where a defendant has been notified of summons by the head of a barrack, military building or warship, a person who stand in for such head or prison officer, it shall have the same effect as the service of a writ of summons. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 109 (Definition of Detention) |
The term "detention" in this Act shall mean compulsory appearance and confinement.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 110 (Grounds for Detention) |
| (1) | Where a considerable reason to suspect that a defendant has committed a crime and any of the following reasons exists, the military court may detain such defendant: |
| 1. | Where a defendant has no fixed abode; |
| 2. | Where a defendant is likely to destroy evidence; |
| 3. | Where a defendant flees or is likely to flee. |
| (2) | When the military court examines the reasons for detention prescribed in paragraph (1), it shall consider the seriousness of crime, risk to repeat an offense, fear of inflicting harm to the victim, important witness, etc. |
| (3) | For cases falling under a maximum fine not exceeding 500,000 won, misdemeanor imprisonment or minor fine, a defendant shall not be detained except for the cases prescribed in paragraph (1)1. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 111 (Effect of Custody) |
Where a defendant who has been compelled to appear has been taken to the military court and the court recognizes that confinement is not necessary, such defendant shall be released within 24 hours from the time he/she was escorted to court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 111-2 (Confinement after Taking Criminal Defendant into Custody) |
When a defendant taken to the military court in custody needs to be kept, the military court may take such defendant into custody in the military prison or military pretrial detention facility. In such cases, the period of custody shall not exceed 24 hours from the time the defendant was taken to court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 112 (Detention, Notification of Reasons therefor, etc.) |
A defendant shall not be detained before being notified of the gist of facts constituting an offense, reasons for detention, and the fact that he/she may appoint a defense attorney, and before being given an opportunity to defend himself/herself: Provided, That where a defendant has fled, such defendant may be detained.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 112-2 (Commissioned Military Judge) |
The military court may require a commissioned military judge to implement the procedure under Article 112. [This Article Newly Inserted on Jun. 9, 2020]
| Article 113 (Issuance of Detention Warrant) |
A detention warrant shall be issued when a defendant is compelled to appear or is to be confined.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 114 (Form of Warrant of Detention) |
| (1) | The detention warrant shall contain the name, post, rank, occupation, serial number, resident registration number, and dwelling of the defendant, name of crime, gist of facts constituting an offense subject to public prosecution, place to be taken to or to be confined in, date of issuance, period of validity and the gist that execution shall not be conducted after such period expires and the warrant shall be returned, and the presiding judge or military judge shall put his/her name and seal thereon. |
| (2) | Where the name of the defendant is uncertain, his/her countenance, build and other features with which to identify him/her may be used to indicate him/her. |
| (3) | When a defendant has no fixed abode, the abode may be omitted. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 115 (Requisition of Detention) |
| (1) | A military court may entrust the military judge of a military court or judge of a local court in the jurisdiction where the defendant is presently residing with the detention of such defendant. |
| (2) | Where the defendant is not staying within the jurisdiction, the entrusted military judge or entrusted judge may again entrust the military judge of military court or judge of a local court in the jurisdiction where the defendant is presently residing with the detention of such defendant. |
| (3) | The entrusted military judge or entrusted judge shall issue a detention warrant. |
| (4) | Article 114 shall apply mutatis mutandis to the detention warrant prescribed in paragraph (3). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 116 (Detention Procedures following Entrustment) |
| (1) | In cases under Article 115, the military judge or judge of a local court who has issued a detention warrant under entrustment shall examine whether the person who has been escorted to the military court is exactly the defendant within 24 hours from the time such person was escorted to the military court. |
| (2) | When the person is exactly the defendant, he/she shall be promptly sent to the designated place. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 117 (Order to Attend or Travel Together) |
If necessary, the military court may order the defendant to attend a place or to travel together.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 118 (Emergency Disposition) |
In cases of emergency, the presiding judge or military judge may issue disposition prescribed in Articles 105, 106, 108, 110, 111, 111-2, 113, 115 and 117. <Amended on Jun. 9, 2020> [This Article Wholly Amended on Dec. 29, 2009]
| Article 119 (Execution of Warrant of Detention) |
| (1) | The detention warrant shall be executed by an assistant military judicial police officer under the direction of a military prosecutor: Provided, That in cases of emergency, the presiding judge, military judge, entrusted military judge or entrusted judge may direct the execution thereof. <Amended on Jan. 6, 2016> |
| (2) | In cases under the proviso to paragraph (1), the presiding judge, military judge or entrusted military judge may order the clerk of a military court to execute detention, and the entrusted judge may order the Grade V official of court to execute detention. In such cases, the clerk of the military court, Grade V official, etc. may, if necessary for the execution, request the assistant military judicial police officers or assistant judicial police officers for assistance, and may execute detention even outside of jurisdiction. |
| (3) | The detention warrant issued to a defendant in the prison shall be executed by a prison officer under the direction of the military prosecutor. <Amended on Jan. 6, 2016> |
| (4) | If necessary, an assistant judicial police officer may be required to execute a detention warrant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 120 (Preparation of Several Copies of Detention Warrant) |
| (1) | Several copies of detention warrant may be prepared and delivered to several assistant military judicial police officers or assistant judicial police officers. |
| (2) | In cases under paragraph (1), cause thereof shall be entered in the detention warrant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 121 (Execution of Warrants of Detention outside Jurisdiction and Entrustment thereof) |
| (1) | If necessary, a military prosecutor may direct the execution of a detention warrant in an area outside jurisdiction, or entrust the military prosecutor or prosecutor of the local prosecutors’ office having jurisdiction over such area with the direction of execution thereof. <Amended on Jan. 6, 2016> |
| (2) | If necessary, assistant military judicial police officers or assistant judicial police officers may execute a detention warrant in an area outside jurisdiction, or entrust the assistant military judicial police officers or assistant judicial police officers having jurisdiction over such area with the execution thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 122 (Entrustment to Chief Public Prosecutor with Investigation, etc.) |
When the defendant’s whereabouts is unknown, the presiding judge or military judge may entrust the chief public prosecutor of the High Public Prosecutor’s Office of the chief public prosecutor of local public prosecutor’s office with investigation and execution of the detention warrant.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 123 (Procedures for Execution of Detention Warrant) |
| (1) | When a detention warrant is executed, it shall be shown to the defendant without fail, who shall be promptly taken to the designated military court or another designated place. |
| (2) | When a detention warrant prescribed in Article 115 (3) is executed, the defendant shall be escorted to the military judge or judge of a local court who has issued such detention warrant. |
| (3) | Where a detention warrant is not in possession in time of emergency, a warrant may be executed after the defendant has been notified of the gist of facts constituting an offense subject to public prosecution and that a detention warrant has been issued. |
| (4) | After execution prescribed in paragraph (3) has been completed, a detention warrant shall be promptly presented. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 124 (Procedures for Execution of Warrant on Persons in Barracks, etc.) |
| (1) | Where one executes a detention warrant on a person in a barrack, military building or warship, he/she shall present the detention warrant to the head of the barrack, military building or warship, or a person who stands in for such head, and request him/her to surrender such person. |
| (2) | Where one executes a detention warrant on a person who is presently serving in the military building or warship even though such person is outside the military building or warship, he/she shall present the detention warrant to the head of the military building or warship, or a person who stands in for such head, and request him/her to surrender such person. |
| (3) | The person who is requested pursuant to paragraphs (1) and (2) shall cooperate with it without delay. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 125 (Temporary Custody During Escort) |
Where one escorts a defendant subject to a detention warrant, if necessary, he/she may keep such defendant in custody in a nearby prison in the interim.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 126 (Transfer of Defendants to Other Prisons) |
A military prosecutor may transfer a defendant under detention to another prison with the permission of military court. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 127 (Notice of Detention) |
| (1) | Where a military prosecutor detains a defendant, he/she shall notify the head of a unit to which such defendant is posted and defense attorney, if any, or a person designated by such defendant from among persons prescribed in Article 59 (2), unless any defense attorney exists, of the name of the case of such defendant, date and time, place of detention, gist of facts constituting the offense, grounds of detention, and that a defense attorney can be appointed. |
| (2) | The notification prescribed in paragraph (1) shall be made in writing without delay. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 128 (Detention and Notice of Facts Charged, etc.) |
Where a military prosecutor detains a defendant, he/she shall notify the defendant of the gist of facts constituting the relevant offense subject to public prosecution and that he/she can appoint a defense attorney.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 129 (Interview, etc. with Detained Defendants) |
A defendant under detention may meet with other persons, give and take documents or articles, and receive medical treatment within the extent prescribed by Acts.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 130 (Application for Defense Counsel) |
| (1) | A defendant under detention may designate a defense attorney and request a military judge, prison warden or a person who stands in for such warden to appoint such defense attorney. |
| (2) | The military judge, prison warden or a person who stands in for such warden upon the receipt of a request under paragraph (1) shall, without delay, notify the defense attorney of the gist thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 131 (Restriction on Interview, etc. with Persons other than Defense Attorney) |
Where any considerable reason to recognize that a defendant is likely to flee, destroy the evidence of crime, or divulge military secrets exists, the military court may, ex officio or by ruling at the request of a military prosecutor, prohibit interviews between a defendant under detention and persons other than those prescribed in Article 63, inspect documents or articles given or taken, prohibit giving or taking of documents or articles, or confiscate documents or articles: Provided, That in cases of clothes, foods or medical supplies, giving or taking them shall not be prohibited or they shall not be confiscated. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 132 (Detention Period and Its Renewal) |
| (1) | A period of detention shall be two months. |
| (2) | Where continued detention is particularly necessary, notwithstanding paragraph (1), each level of court may renew the period of detention two times, and each time by two months, by ruling: Provided, That in cases of an appeal for which additional hearings are unavoidably necessary due to the examination of evidence requested by the defendant or defense attorney, submission of documents supplementing reasons for lodging an appeal, etc., renewal may be allowed up to three times. |
| (3) | The period during which the trial proceedings have been suspended pursuant to Articles 54, 355 (4) and 357 (1) and (2) and the period during which the defendant has been arrested, confined and compelled to appear shall not be counted in the period prescribed in paragraphs (1) and (2). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 133 (Rescission of Detention) |
Where any ground for detention does not exist or becomes irrelevant, the military court shall revoke detention ex officio or by ruling at the request of a military prosecutor, defendant, defense attorney or a person prescribed in Article 59 (2). <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 134 (Motion for Release on Bail) |
A defendant under detention, his/her defense attorney, legal representative, spouse, lineal relatives, siblings, family members, live-in partner, or employer may file a motion for the release of the defendant on bail with the competent military court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 135 (Compulsory Release on Bail) |
When a request for bail is filed, the military court shall permit bail except in the following cases: <Amended on Jun. 9, 2020>
| 1. | When the criminal defendant commits an offense punishable with death penalty or imprisonment, with or without labor, for an indefinite term or for a maximum term of more than 10 years; |
| 2. | Where the defendant is a repeated offender or habitual offender; |
| 3. | Where any sufficient reason exists to believe that the defendant destroys or is likely to destroy the evidence of offense; |
| 4. | Where any sufficient reason exists to believe that the defendant flees or is likely to flee; |
| 5. | Where the whereabouts of the defendant is unknown; |
| 6. | Where any sufficient reason exists to believe that the defendant inflicts or is likely to inflict harm on the life, body or property of the victim, of a person recognized as having knowledge of the fact necessary for the trial of the relevant case, or of the relatives thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 136 (Voluntary Release on Bail) |
Notwithstanding Article 135, the military court may permit bail ex officio or at the request of those prescribed in Article 134 by ruling if any considerable reason exists. [This Article Wholly Amended on Dec. 29, 2009]
| Article 137 (Bail and Revocation of Detention and Opinions of Military Prosecutors) |
| (1) | When the military court renders a ruling on bail, it shall request the military prosecutors to promise an opinion. <Amended on Jan. 6, 2016> |
| (2) | Paragraph (1) shall also apply to a ruling on the revocation of detention: Provided, That this shall not apply to the request by a military prosecutor or in cases of emergency. <Amended on Jan. 6, 2016> |
| (3) | The military prosecutor shall, without delay, express his/her opinion on the request for opinion prescribed in paragraphs (1) and (2). <Amended on Jan. 6, 2016> |
| (4) | A military prosecutor may file an immediate appeal against a ruling revoking detention. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 138 (Factors to be Considered in Attaching Conditions to Release on Bail) |
| (1) | When determining conditions prescribed in Article 139, the military court shall consider the following matters: |
| 1. | Nature and circumstances of crime; |
| 2. | The probative value of evidence against the defendant; |
| 3. | Criminal records, character, background and asset of the defendant; |
| 4. | Matters relating to circumstances after committing the crime, such as compensation for victims. |
| (2) | The military court shall not be allowed to lay down a condition beyond the financial ability or asset of the defendant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 139 (Conditions of Release on Bail) |
Where the military court permits bail, it shall lay down at least one of the following conditions within the extent necessary and appropriate:
| 1. | The defendant shall submit a written oath that he/she will appear at the time of the date and the place designated by the military court and that he/she will not destroy evidence; |
| 2. | The defendant shall submit an agreement promising that he/she will pay an amount equivalent to the bail set by the military court; |
| 3. | The defendant shall be subject to measures in order to prevent him/her from fleeing, such as that dwelling is restricted to a place designated by the military court, permission is to be obtained from the military court if necessary to change dwelling, etc.; |
| 4. | The defendant shall not inflict any harm on the life, body or property of the victim, or a person recognized as having knowledge of facts necessary for the trial of the relevant case, or relatives thereof, and shall not access to the vicinity thereof, such as dwelling, workplace, etc.; |
| 5. | The defendant shall submit a letter of guarantee for guaranteeing his/her appearance, which is prepared by a person other than the defendant; |
| 6. | The defendant shall make an oath that he/she will not go abroad without the permission of the military court; |
| 7. | The defendant shall deposit an amount necessary for the recovery of victim’s rights or offer security corresponding thereto by a method designated by the military court; |
| 8. | A person designated by the defendant or the military court shall pay bail money or offer security; |
| 9. | The defendant shall fulfill appropriate conditions determined by the military court to guarantee his/her appearance. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 140 (Procedures for Execution of Bail) |
| (1) | The ruling of permission for bail shall not be executed if conditions in subparagraphs 1, 2, 5, 7 and 8 of Article 139 are not met, and the military court may, if recognized as necessary, determine that the ruling of permission for bail is to be executed after other conditions are fulfilled. |
| (2) | The military court may permit a person, other than the one requesting bail to pay bail money. |
| (3) | The military court may permit securities or a letter of guarantee submitted by a person, other than the defendant, to substitute for bail money. |
| (4) | A requirement that the bail money will be paid any time shall be inserted in the letter of guarantee under paragraph (3). |
| (5) | The military court may request the government offices or other public and private organizations to take appropriate measures to the extent as may be necessary so that a defendant who has been released by the ruling of permission for bail may fulfill the conditions of bail. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 140-2 (Administrative Fines on Guarantors of Appearance) |
| (1) | Where a defendant released in accordance with the ruling of permission for bail with conditions prescribed in subparagraph 5 of Article 139 fails to appear on the court date without justifiable grounds, the military court may, by ruling, impose an administrative fine not exceeding five million won on the guarantor of appearance. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 141 (Suspension of Execution of Detention) |
| (1) | When considerable reasons exist, the military court may suspend the execution of detention of a defendant under detention by ruling. |
| (2) | In cases under paragraph (1), the military court shall suspend the execution of detention by requesting the head of a unit to which the defendant is posted if the defendant is living in barracks, by requesting the relatives, protection organization or appropriate persons if the defendant is not living in barracks or by restricting the dwelling of the defendant. |
| (3) | When determining a ruling prescribed in paragraph (1), the military court shall seek opinions of the military prosecutors: Provided, That in cases of emergency, this shall not apply. <Amended on Jan. 6, 2016> |
| (4) | Deleted. <Jun. 9, 2020> |
| (6) | The military prosecutor of the High Prosecutors’ Office who has been notified of the motion for release prescribed in paragraph (5) shall immediately direct the release and notify the competent military court of the reason therefor. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 142 (Change, Revocation, etc. of Conditions of Bail) |
| (1) | The military court may change the conditions of bail of a defendant or postpone the performance of conditions for a specified period ex officio or by ruling at the request of the persons prescribed in Article 134. |
| (2) | Where a defendant falls under any of the following subparagraphs, the military court may revoke bail or a suspended execution of detention ex officio or by ruling at the request of the military prosecutor: Provided, That in cases of a suspended execution of a detention warrant under Article 141 (5), such suspension shall not be revoked during the relevant session: <Amended on Jan. 6, 2016> |
| 1. | Where he/she has fled; |
| 2. | Where sufficient grounds exist to believe that he/she is likely to flee or destroy the evidence of crime; |
| 3. | Where he/she fails to appear before the military court without justifiable grounds upon the receipt of a summons; |
| 4. | Where he/she inflicts any harm or sufficient reasons exist to believe that he/she is likely to inflict any harm on the life, body or property of the victim, a person deemed to have knowledge of facts necessary for the trial of the relevant case, or relatives thereof; |
| 5. | Where he/she violates restrictions on dwelling or other conditions determined by the military court. |
| (3) | Where a defendant violates conditions of bail without justifiable grounds, the military court may impose an administrative fine not exceeding ten million won or confine such defendant for not more than 20 days by ruling. |
| (4) | An immediate appeal may be filed against a ruling under paragraph (3). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 143 (Confiscation of Bail Bond, etc.) |
| (1) | When the military court revokes bail, it may confiscate all or part of the bail amount or security ex officio or by ruling at the request of the military prosecutor. <Amended on Jan. 6, 2016> |
| (2) | Where a defendant who had been released on condition that he would pay bail money or offer security fails to appear or flees after having been summoned for execution after he/she was sentenced to punishment for facts constituting the same offense, the military court shall confiscate all or part of bail amount or security ex officio or at the request of military prosecutor by ruling. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 144 (Return of Bail Bond) |
Where detention or bail is revoked, or the validity of detention warrant expires, the bail bond or security that has not been confiscated shall be returned within seven days from the date a request is made.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 144-2 (Invalidation of Conditions of Bail) |
| (1) | When a detention warrant becomes invalid, the conditions of bail shall immediately become invalid. |
| (2) | Paragraph (1) shall also apply to the revocation of bail: Provided, That conditions in subparagraph 8 of Article 139 shall be an exception. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 145 (Appeal and Ruling on Detention) |
Ruling on the renewal of detention period, revocation of appeal, bail, suspension of execution of detention, or revocation of such suspension for a case in the period to file an appeal or under appeal shall be rendered by the lower military court if court records are kept by such lower military court.
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 8 Search and Seizure
| Article 146 (Seizure, etc.) |
| (1) | The military court may, if necessary, seize articles of evidence or articles deemed to be confiscated, only from among those that are deemed to be related to the defendant’s case: Provided, That in cases prescribed otherwise by Acts, this shall not apply. <Amended on Dec. 12, 2017> |
| (2) | The military court may designate articles to be seized and order owner, holder or keeper to produce such articles. |
| (3) | Where the object to be seized is a computer disk or any other similar information storage media (hereinafter referred to as “information storage media, etc.”), a defined range of information stored shall be presented in printed hard copy or duplicated form to the military court: Provided, That if it is deemed to be impossible to print or duplicate the relevant information within a defined range, or significantly difficult to attain the purpose of seizure. <Newly Inserted on Dec. 12, 2017> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 147 (Seizure of Postal Matter) |
| (1) | The military court may, if necessary, order to produce or seize articles held by or in the custody of post offices or other relevant agencies, etc., being postal matter or telecommunications under subparagraph 3 of Article 2 of the Protection of Communications Secrets Act (hereinafter referred to as “telecommunications”) only from among those that are deemed to be related to the defendant’s case. <Amended on Dec. 12, 2017> |
| (12) | Deleted. <Dec. 12, 2017> |
| (3) | When the military court conducts disposition prescribed in paragraph (1), it shall notify the addresser or addressee of the purport: Provided, That where such notification is likely to obstruct a hearing, this shall not apply. <Amended on Dec. 12, 2017> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 148 (Seizure of Voluntarily Produced Articles, etc.) |
Articles voluntarily produced or left behind by the owner, holder or keeper may be seized without a seizure warrant.
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | The military court may, if necessary, search the body, articles, dwelling or other places of the defendant, only from among those that are deemed to be related to the defendant’s case. <Amended on Dec. 12, 2017> |
| (2) | The body, articles, dwelling or other places of a person other than the defendant can be searched only if seizable articles are deemed to exist. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 150 (Military Secrets, Search and Seizure) |
| (1) | Search or seizure shall not be conducted in a place where military secrecy is requested without consent of the head of such place or of a person who stands in for such head. |
| (2) | The person in charge prescribed in paragraph (1) shall not refuse to grant consent except for cases where significant national interests are at risk. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 151 (Official Secrets and Seizure) |
| (1) | Where a person who is or was a public official or the head of the relevant government office has reported that articles held or kept by such person are related to secrets in the line of duties, seizure shall not be conducted without the permission of the head of such government office or the head of supervisory government institution thereof. |
| (2) | No head of any government office or any supervisory government institution shall refuse consent except for cases where significant national interests are at risk. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 152 (Trade Secrets and Seizure) |
A person who is or has been an advocate, patent attorney, notary public, certified public accountant, licensed tax accountant, licensed customs agent, licensed public appraiser, licensed judicial scrivener, administrative scrivener, doctor, drug merchant, herbal pharmacist, dentist, pharmacist, herbal druggist, midwife or nurse, or a person who has or has had a profession of religion may refuse seizure of articles held or kept under entrustment in relation of duties and are related to secrets of other persons: Provided, That where such other persons have given consent or needs for important public interests exist, this shall not apply.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 153 (Search and Seizure Warrants) |
Search or seizure outside the courtroom shall be conducted after issuance of a warrant.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 154 (Format for Warrant) |
| (1) | In the warrant of search and seizure, the name of the defendant, type of offense, articles to be seized, place, person and articles to be searched, date of issue, term of validity and the purport that the warrant is not to be executed past such term of validity and that the warrant is to be returned shall be inserted, and the presiding judge or military judge shall sign and seal thereon. |
| (2) | Article 114 (2) shall apply mutatis mutandis to the warrant of search and seizure prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 155 Deleted. <Jun. 9, 2020> |
| Article 156 (Warrants and Execution) |
| (1) | A warrant of search and seizure shall be executed by an assistant military judicial police officer under the direction of a military prosecutor: Provided, That if necessary, the presiding judge or military judge may order a clerk to execute the warrant. <Amended on Jan. 6, 2016> |
| (2) | Article 121 shall apply mutatis mutandis to the execution of a warrant of search and seizure. |
| (3) | An assistant judicial police officers may be requested to execute a warrant of search and seizure, if necessary. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 157 (Support to Execution) |
When a warrant of search and seizure needs to be executed, a clerk may request the assistant military judicial police officers for support.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 158 (Caution in Execution) |
When a warrant of search and seizure is executed, a person’s confidential information shall be kept and caution shall be exercised not to injure the honor of the persons on whom disposition is issued.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 159 (Presentation of Warrant) |
A warrant of search and seizure must be presented to a person on whom disposition is issued.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 160 (Prohibition of Entrance and Exit During Execution) |
| (1) | While a warrant of search and seizure is being executed, other persons may be forbidden to enter and leave the place. |
| (2) | The military judicial police officers may expel those who violates paragraph (1) from the place or have them under surveillance. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 161 (Execution and Necessary Disposition) |
| (1) | When a warrant of search and seizure is executed, locks may be unlocked, seals may be taken off, and other necessary disposition may be conducted. |
| (2) | The disposition prescribed in paragraph (1) may be conducted on seized articles. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 162 (Participation by Parties) |
A military prosecutor, defendant or defense attorney may be present during the execution of a warrant of search and seizure. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 163 (Execution of Warrants and Notification to Persons Authorized to be Present) |
When a warrant of search and seizure is executed, persons prescribed in Article 162 shall be notified of the date and time and place of execution in advance: Provided, That where the persons prescribed in Article 162 declare in advance that they would not be present at such place on such date or in cases of emergency, this shall not apply. [This Article Wholly Amended on Dec. 29, 2009]
| Article 164 (Execution of Warrants and Presence of Responsible Persons) |
| (1) | When a warrant of search and seizure is executed in a public office building, barrack, military building, aircraft or warship, the head of such place or person who stands in for such head shall be notified to be present at the execution of a warrant of search and seizure. |
| (2) | When a warrant of search and seizure is executed, other than places prescribed in paragraph (1), in a third person’s dwelling, or a house, structure, aircraft, ship or automobile that has a manager, the dweller, manager or a person corresponding thereto shall be required to be present at the execution of a warrant of search and seizure. |
| (3) | When persons prescribed in paragraph (2) cannot be present at the execution of a warrant of search and seizure, neighbors or staff of local public organizations shall be required to attend the execution of a warrant of search and seizure. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 165 (Search and Presence of Females) |
When the body of a female is searched, female grownups shall be required to attend such search.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 166 (Restriction on Execution at Night) |
Unless a warrant of search and seizure authorizes execution thereof during night time, no one shall enter another person’s dwelling or a house, structure, aircraft, ship or automobile that has a manager, to execute a warrant of search and seizure before sunrise and after sunset.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 167 (Exceptions to Restrictions on Execution during Night Time) |
When a warrant of search and seizure is executed any of the following places, restrictions in Article 166 shall not apply: | 1. | A place recognized as being used for gambling or other acts corrupting public morals at all times; |
| 2. | Inns, restaurants or places where people can enter and leave during night time: Provided, That only where such establishment is open, a warrant of search and seizure may be executed. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 168 (Suspension of Execution and Necessary Disposition) |
Where the execution of a warrant of search and seizure is suspended, if necessary, the place may be closed or be placed under surveillance.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 169 (Issuance of Attestations) |
When a search has uncovered no evidence or confiscatable articles, a certificate to that effect shall be issued.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 170 (Issuance of Inventory of Seized Articles) |
Where seizure is conducted, an inventory thereof shall be prepared and presented to the owner, holder, keeper or a person corresponding thereto.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 171 (Keeping and Scrapping of Seized Articles) |
| (1) | As for seized articles inconvenient to transport or keep, the manager thereof may be placed, or the owner or an appropriate person may be required to keep them with the consent of such person. |
| (2) | Seized articles that are likely to incur danger may be scrapped or other necessary measures may be taken on such objects. |
| (3) | Seized articles that are legally forbidden to produce, manufacture, hold, possess or distribute, and are likely to deteriorate or are difficult to keep may be scrapped with the consent of a right holder, such as owner, etc. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 172 (Prevention of Loss, etc. of Seized Articles) |
Appropriate measures shall be taken to prevent the loss, damage, etc. of seized articles.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 173 (Keeping Proceeds of Seized Articles) |
| (1) | Where seized articles subject to confiscation are likely to be destroyed, broken, deteriorated, substantially devalued, or are impractical to be kept, such articles may be sold and the proceeds from the sale may be kept. |
| (2) | Where a person to whom seized articles are to be returned is unknown or the whereabouts of such person is not clear, and such articles are likely to be destroyed, broken, deteriorated, or substantially devalued, or are impractical to be kept among seized articles to be returned, such articles may be sold and the proceeds from the sale shall be kept. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 174 (Return or Temporary Return of Seized Articles) |
| (1) | Seized articles, the continued seizure of which is recognized as unnecessary, shall be returned by ruling even before the conclusion of the defendant’s case, and the seized articles to be produced as evidence may be temporarily returned at the request of the owner, holder, keeper or presenter. |
| (2) | Articles that have been seized for presenting for evidence only and that the owner or holder has to use them continuously shall be, without delay, temporarily returned upon a ruling after taking photographs or taking measures to preserve the original form thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 175 (Return of Seized Stolen Articles to Victims) |
When reasons to return seized, stolen articles to the victim are clear, such articles may be returned to the victim by ruling even before the conclusion of defendant’s case.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 176 (Disposal of Seized Articles and Notification to Interested Parties) |
When rulings prescribed in Articles 173 through 175 are to be made, the military prosecutor, victim, defendant or defense attorney shall be notified thereof in advance and be requested for an opinion. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 177 (Entrustment of Search and Seizure to Commissioned Military Judges, etc.) |
| (1) | The military court may order the military judge to search or seize, and entrust the military judge of a military court or judge of a local court having jurisdiction over the place where the object exists with the search or seizure. |
| (2) | If the object of search or seizure does not exist in the jurisdiction, the commissioned military judge or commissioned judge may again entrust the military judge of a military court or judge of a local court having jurisdiction over the place where the object exists with the search or seizure. |
| (3) | Provisions concerning search or seizure conducted by a military court shall apply mutatis mutandis to the search or seizure to be conducted by a commissioned military judge, entrusted military judge or entrusted judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 178 (Execution of Detention Warrants and Searches) |
Where a detention warrant needs to be executed, a military prosecutor, prosecutor of local prosecutor’s office, assistant military judicial police officer, assistant judicial police officer, military court clerk, Grade V official of the court, etc. prescribed in Article 119 (2) may, if necessary, enter another person’s dwelling, or a house, structure, aircraft, ship or automobile that has a manager and search a defendant. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 179 (Provisions to be Applied Mutatis Mutandis) |
Articles 160, 161, 164 and 168 shall apply mutatis mutandis to the search of a military prosecutor, prosecutor of local prosecutor’s office, assistant military judicial police officer, assistant judicial police officer, military court clerk, Grade V official of the court, etc. prescribed in Article 178. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
SECTION 9 Inspection of Evidence
| Article 180 (Verification) |
If necessary, the military court may inspect evidence to discover facts.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 181 (Inspection of Evidence and Necessary Disposition) |
Where evidence is inspected, physical examination, autopsy, exhumation, destruction of objects or other measures may be conducted.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 182 (Caution against Physical Examination) |
| (1) | When an physical examination is made, caution shall be exercised so as not to damage the health and fame of the person being examined in consideration of his/her sex, age, health conditions and other circumstances. |
| (2) | The physical examination of a person other than the defendant may be required only if a considerable reason to confirm the existence of trace of evidence exists. |
| (3) | Where a woman is required to be physically examined, a doctor or adult female shall be required to attend such physical examination. |
| (4) | When an autopsy or exhumation is conducted, caution shall be exercised so as not to be impolite and the bereaved family shall be notified of it in advance. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 183 (Physical Examinations and Summons) |
The military court may summon a person other the defendant to the military court or a designated place for physical examination.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 184 (Restrictions on Time) |
| (1) | No one shall enter another person’s dwelling or a house, structure, aircraft, ship or automobile that has a manager, to inspect evidence before sunrise nor after sunset without the consent of the owner of the house, manager or a person corresponding thereto: Provided, That where it is hardly possible to achieve the purpose of inspection of evidence after sunrise, this shall not apply. |
| (2) | Where an inspection of evidence has begun before sunset, such inspection may continue even after sunset. |
| (3) | No restrictions prescribed in paragraph (1) shall govern the places prescribed in subparagraphs of Article 167. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 185 (Support to Inspection of Evidence) |
Where evidence is inspected, the assistant military judicial police officer may be ordered to give support thereto.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 186 (Provisions to be Applied Mutatis Mutandis) |
Articles 150, 160 through 164, 168 and 177 shall apply mutatis mutandis to the inspection of evidence. [This Article Wholly Amended on Dec. 29, 2009]
SECTION 10 Examination of Witness
| Article 187 (Qualifications for Witnesses) |
Unless prescribed otherwise by law, the military court may examine any person as a witness.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 188 (Official Secret and Qualifications for Witnesses) |
| (1) | Where a person who is or was a public official or the head of the relevant government office has reported that facts that he/she has learned in the course of duties are among confidential information in the line of duties, examination of such person as witness shall not be conducted without the consent of the head of such government office or the head of supervisory government institution thereof. |
| (2) | No head of any government office or any supervisory government institution shall refuse consent except for cases where significant national interests are at risk. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 189 (Criminal Responsibility and Refusal to Offer Testimony of Near Relatives) |
Any person may refuse to offer testimony disclosing a fact by which he/she or a person in any of the following relations is likely to be prosecuted, indicted or convicted:
| 1. | A person who is or was a relative; |
| 2. | Legal representative or guardian. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 190 (Trade Secrets and Refusal to Offer Testimony) |
A person prescribed in Article 152 may refuse to offer testimony on the fact which he/she has learned in the course of being entrusted with duties, regarding any third person's confidential information: Provided, That where such person has given consent or needs for important public interest exists, this shall not apply. [This Article Wholly Amended on Dec. 29, 2009]
| Article 191 (Vindication of Reasons for Refusal to Offer Testimony) |
A person who refuses to offer testimony shall vindicate reasons why he/she refuses to offer testimony.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 192 (Witness Summons) |
| (1) | The military court shall summon a witness by serving a subpoena through telephone call, email or other appropriate methods: Provided, That where a witness is in the precinct of a military court, he/she may be examined without summon. |
| (2) | Articles 106 through 108 shall apply mutatis mutandis to witness summons. |
| (3) | The person who files a motion for witness summons is under an obligation to make reasonable endeavors to have the witness attend the military court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 193 (Administrative Fine, etc. in Cases of Non-Appearance of Witness) |
| (1) | If a witness on whom a subpoena has been served fails to appear without justifiable grounds, the military court may, by ruling, order the witness to bear the litigation expenses incurred by his/her absence, and impose an administrative fine not exceeding five million won. The same shall apply to cases which have the same effect as the service of a subpoena pursuant to Article 108 (2) and (6), which applies mutatis mutandis as prescribed in Article 192 (2). |
| (2) | If a witness who has stood trial over an administrative fine prescribed in paragraph (1) fails to appear without justifiable grounds, the military court may rule to punish him/her by confinement for not more than seven days. |
| (3) | The military court shall summon a witness on the court date set for the trial of confinement, and place such witness on trial as to whether any justifiable ground exists in cases under paragraph (2). |
| (4) | The confinement of a witness shall be executed by an assistant military judicial police officer, prison officer, courtroom soldiers, court clerks, etc. by putting such witness in the military prison or military pretrial detention facility under the orders of the presiding judge of the military court that has tried the case. |
| (5) | Where a witness is held in custody in a confinement facility prescribed in paragraph (4) after having stood trial for confinement, the head of such confinement facility shall immediately notify the military court of such fact. |
| (6) | When the military court is notified pursuant to paragraph (5), it shall hold a hearing for the examination of a witness without delay. |
| (7) | Where a witness gives testimony while he/she is under confinement after having stood trial for confinement, the military court shall immediately revoke the confinement ruling and issue an order to release the witness. |
| (8) | An immediate appeal may be filed against rulings prescribed in paragraphs (1) and (2). In such cases, Article 459 shall not apply. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 194 (Disobedience to Summons and Compulsory Appearance) |
A witness who fails to answer the summons without justifiable grounds may be compelled to appear before the military court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 195 (Provisions to be Applied Mutatis Mutandis) |
Articles 113 through 116, 119 through 121, 123 (1) and (2), and 124 shall apply mutatis mutandis to the compulsory appearance of witnesses. [This Article Wholly Amended on Dec. 29, 2009]
| Article 196 (Oath of Witness) |
A witness shall be required to make an oath before examination begins: Provided, That where other provisions are prescribed by law, this shall not apply.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 197 (Methods of Oath) |
| (1) | An oath shall be conducted in the form of the written oath. |
| (2) | The written oath shall state "I swear to tell the truth without any concealment or addition, according to my own conscience. If there is any falsehood in my statement, I shall be punished for perjury." |
| (3) | The presiding judge shall have a witness read the written oath and place his/her signature and seal thereon: Provided, That where the witness is unable to read the written oath or sign thereon, a clerk who has attended at the trial shall perform such acts for him/her. |
| (4) | To make an oath, one shall rise to his/her feet and conduct it solemnly. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 198 (Caution to Witnesses who Make Oath) |
The presiding judge or military judge shall give caution to witnesses who make oath against the punishment of perjury.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 199 (Incompetency to Take Oath) |
No witness falling under any of the following subparagraphs shall be examined without making an oath:
| 1. | A person under 16 years of age; |
| 2. | A person who is unable to comprehend the purport of an oath. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 200 (Notice of Right to Refuse to Bear Testimony) |
Where a witness falls under Article 189 or 190, the presiding judge or military judge shall explain him/her that he/she may refuse to bear testimony before examination. [This Article Wholly Amended on Dec. 29, 2009]
| Article 201 (Refusal to Take Oath or to Bear Testimony and Administrative Fines) |
| (1) | If a witness refuses to take an oath or to bear testimony without justifiable grounds, an administrative fine not exceeding 500,000 won may be imposed on him/her by ruling. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 202 (Method of Examining Witness) |
| (1) | A witness shall be examined first by the military prosecutor, defense attorney or defendant who has requested the appearance of such witness, and then another military prosecutor, defense attorney or defendant. <Amended on Jan. 6, 2016> |
| (2) | The presiding judge shall examine the witness after the examination prescribed in paragraph (1) is finished. |
| (3) | Notwithstanding paragraphs (1) and (2), if deemed necessary, the presiding judge may examine witnesses at all times and, if necessary, change the order of examination prescribed in paragraph (1). |
| (4) | The methods of examining a witness to be examined ex officio or of a victim, etc. to be examined as a witness pursuant to Article 388 (1) shall be as set by the presiding judge. |
| (5) | Other military judicial officers may directly examine a witness after informing the presiding judge thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 203 (Separate Examination and Confrontation) |
| (1) | A witness shall be examined individually. |
| (2) | A witness not examined who remains in the court shall be ordered to leave the court. |
| (3) | A witness may be required to confront another witness or defendant, if it is necessary for the examination. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 204 (Right to Attendance of Interested Parties) |
| (1) | The military prosecutor, defendant or defense attorney may be present at the examination of witnesses. <Amended on Jan. 6, 2016> |
| (2) | The date, time and place of examination of a witness shall be, in advance, notified to persons who are authorized to attend the examination of witnesses pursuant to paragraph (1): Provided, That where such persons express their intention not to be present at the examination of witnesses, this shall not apply. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 204-2 (Sitting Together with Persons in Fiduciary Relationship) |
| (1) | Where the military court examines a victim of crime as a witness, it may allow persons in a fiduciary relationship with the victim to sit together with the victim ex officio or at the request of the victim, legal representative or military prosecutor if it recognized that the victim is very likely to feel uneasiness or tension in consideration of the age, physical and mental conditions and other circumstances of the victim. <Amended on Jan. 6, 2016> |
| (2) | Where the victim of crime is under 13 years of age, is physically or mentally incompetent to discern right and wrong, or lacks sufficient mental capacity to make a decision, the military court shall allow persons in a fiduciary relationship with such victim to sit together with the victim except in unavoidable cases such as those likely to cause difficulty to trial, etc. |
| (3) | No person who sits together with the victims pursuant to paragraphs (1) and (2) shall interfere with the examination of the military court and parties to the trial or with the statement of witnesses, nor perform an act likely to exercise undue influence on the contents of such statement. |
| (4) | The extent of persons in the fiduciary relationship who are authorized to sit together with the victim under paragraph (1) or (2), procedures for sitting together with the victim and methods, etc. thereof shall be determined by the Supreme Court Regulations. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 205 (Request for Examination) |
| (1) | If the military prosecutor, defendant or defense attorney does not attend the examination of witnesses, he/she may request the military court to examine necessary matters. <Amended on Jan. 6, 2016> |
| (2) | Where testimony unfavorable to the defendant has been unexpectedly borne when witnesses are examined without the presence of the defendant or defense attorney, the defendant shall be informed of the details of such testimony without fail. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 206 (Examination of Witnesses in Places other than Military Courts) |
The military court may summon witnesses to a place other than the courtroom or examine them at the place where they are after hearing the opinions of the military prosecutor, witnesses or defense attorney in consideration of the age, occupation, health condition and other circumstances of the witnesses. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 206-2 (Examination of Witnesses through Relay System, etc. such as Video, etc.) |
Where the military court examines any of the following persons, it may take the advice of the military prosecutor, defendant, or defense attorney and may examine such person through relay facility equipped with relay system, such as video, etc., or after installing a shielding, etc., if deemed appropriate: <Amended on Jun. 9, 2009; Aug. 4, 2011; Dec. 18, 2012; Jan. 6, 2016>
| 2. | Children, youth, or victims being the target of offenses falling under Articles 7, 8, 11 through 15, and 17 (1) of the Act on the Protection of Children and Youth against Sexual Abuse; |
| 3. | Persons recognized as being highly likely to become psychologically disturbed due to the nature of the offense, age of witnesses, physical and mental condition, relationship with the defendant and other circumstances where they make a statement vis-a-vis a defendant, etc. |
[This Article Newly Inserted on Jan. 17, 2008]
| Article 207 (Orders to Accompany Designated Person and Escorting Witness to Military Court) |
| (1) | If necessary, the military court may order a witness to accompany a designated person to a place designated by ruling. |
| (2) | A witness may be escorted to the military court if he/she refuses to accompany a person designated by the military court without justifiable grounds. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 208 (Entrusting Commissioned Judges, etc. with Examination of Witnesses) |
| (1) | The military court may order a military judge to examine a witness in a place other than the courtroom, or entrust a military judge of the military court or judge of a local court having jurisdiction over the present address of the witness with the examination. |
| (2) | Where the witness is not in the jurisdiction, the entrusted military judge or entrusted judge may further entrust a military judge of the military court or judge of a local court having jurisdiction over the present address of the witness with the examination. |
| (3) | The commissioned military judge, entrusted military judge or entrusted judge may issue disposition belonging to the authority of the presiding judge or military judge of a military court concerning the examination of witnesses. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 209 (Traveling Expenses, Daily Allowances and Lodging Expenses of Witnesses) |
A summoned witness may submit a claim for traveling expenses, daily allowances and lodging expenses as prescribed by Acts: Provided, That this shall not apply to persons who have refused to take an oath or to bear witness.
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 11 Expert Testimony
| Article 210 (Expert Evidence) |
The military court may order a person of knowledge and experience to give expert evidence.
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | An expert witness shall take an oath before giving expert evidence. |
| (2) | The oath shall be administered in the form of a written oath. |
| (3) | The written oath shall state "I swear to tell the truth without any concealment or addition according to my own conscience and if there is any falsehood in my statement, I shall be punished for false expert evidence." |
| (4) | Articles 197 (3) and (4), and 198 shall apply mutatis mutandis to the oath of an expert witness. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 212 (Report on Results of Expert Evidence) |
| (1) | Expert witnesses shall be required to submit a written report on the results of expert evidence. |
| (2) | When several expert witnesses exist, they may be required to submit a report prescribed in paragraph (1) individually or jointly. |
| (3) | Reasons for conclusion shall be clearly stated in a report on the results of expert evidence. |
| (4) | If necessary, expert witnesses may be made to give an explanation. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 213 (Expert Evidence Outside Courtroom) |
| (1) | If necessary, the military court may have an expert witness give expert evidence in a place other than the courtroom. |
| (2) | In cases under paragraph (1), the military court may deliver objects necessary for expert evidence. |
| (3) | If necessary for the expert evidence of the mental and physical condition of a defendant, the military court may have the defendant kept in custody in a hospital or other appropriate places for a specified period, and terminate the custody immediately upon the closing of expert evidence. |
| (4) | When a defendant is to be taken into custody pursuant to paragraph (3), a custody warrant for expert evidence shall be issued. |
| (5) | When a defendant is taken into custody pursuant to paragraph (3), if necessary, the military court may order an assistant military judicial police officer to keep watch on the defendant ex officio or at the request of the manager of the hospital to accommodate such defendant or other places. |
| (6) | If necessary, the military court may extend or shorten the custody period. |
| (7) | Unless prescribed otherwise by this Act, provisions concerning detention shall apply mutatis mutandis to the custody prescribed in paragraph (3): Provided, That this shall not apply to provisions concerning bail. |
| (8) | The custody prescribed in paragraph (3) shall be deemed detention in calculating the number of days of unconvicted confinement. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 214 (Custody for Expert Evidence and Detention) |
| (1) | When a custody warrant for expert evidence has been executed on a defendant under detention, the execution of detention shall be deemed to have been suspended while such defendant is kept in custody. |
| (2) | In cases under paragraph (1), when the disposition of custody prescribed in Article 213 (3) is revoked or the custody period expires, the suspension of execution of detention shall be deemed to have been revoked. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 215 (Disposition Necessary for Expert Testimony) |
| (1) | An expert witness may enter a third person’s dwelling or a house, structure aircraft, ship or automobile that has a manager, and conduct a physical examination, autopsy or exhumation, or destroy objects with the leave of the military court, if necessary for expert evidence. |
| (2) | When the military court issues leave pursuant to paragraph (1), it shall issue a certificate of leave, in which the name of the defendant, type of offense, places to enter, persons to be examined, corpses to be dissected, graves to be exhumed, objects to be destroyed, name of expert witness, and period of validity are recorded. |
| (3) | An expert witness shall show the certificate of leave to persons to whom disposition prescribed in paragraph (1) is issued. |
| (4) | Paragraphs (2) and (3) shall not apply to disposition prescribed in paragraph (1) which is conducted in the courtroom by an expert witness. |
| (5) | Articles 182 and 184 shall apply mutatis mutandis to paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 216 (Right to Attendance and Examination of Expert Witnesses) |
| (1) | An expert witness may peruse or duplicate documents and articles of evidence with the leave of the presiding judge or military judge, and be present at the examination of defendants or witnesses. |
| (2) | An expert witness may request the examination of defendants or witnesses or directly examine defendants or witnesses with the leave of the presiding judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 217 (Commissioned Military Judge) |
The military court may have a military judge issue a disposition necessary for expert evidence.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 218 (Participation by Parties) |
| (1) | The military prosecutor, defendant or defense attorney may attend the expert evidence. <Amended on Jan. 6, 2016> |
| (2) | Article 163 shall apply mutatis mutandis to cases falling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 219 (Provisions to be Applied Mutatis Mutandis) |
Provisions concerning the examination of witnesses in Section 10 of this Chapter (excluding provisions concerning escort of witness to the military court) shall apply mutatis mutandis to expert evidence.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 220 (Counter-Terrorism and Security Measures) |
Expert witnesses may request fees for expert evidence and substitute payment in addition to traveling expenses, daily allowances and lodging expenses.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 221 (Expert Witness) |
Where facts regarding the past that a witness has learned through special study are examined, provisions concerning the examination of witnesses in Section 10 of this Chapter shall apply, instead of the provisions of this Section.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 221-2 (Entrustment of Expert Evidence) |
| (1) | Where the military court deems it necessary, it may entrust the government offices, schools, hospitals, and organizations or institutions equipped with appropriate facilities with expert evidence. In such cases, provisions concerning oath shall not apply. |
| (2) | In cases under paragraph (1), the military court may have a person designated by the relevant government offices, schools, organizations or institutions explain the written expert opinion. |
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 12 Interpretation and Translation
| Article 222 (Interpretation Services) |
Statements made by a person not versed in the Korean language shall be interpreted by an interpreter.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 223 (Interpretation for Persons of Hearing or Speech Impairment) |
Statements made by persons with hearing or speech impairment may be interpreted by an interpreter.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 224 (Translation) |
Letters, signs, or marks not in the Korean language shall be translated.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 225 (Provisions to be Applied Mutatis Mutandis) |
The provisions concerning expert evidence in Section 11 of this Chapter shall apply mutatis mutandis to interpretation and translation.
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 13 Preservation of Evidence
| Article 226 (Requests and Procedures for Preservation of Evidence) |
| (1) | If a certain reason exists for which evidence is hard to use unless it has been preserved in advance, the military prosecutor, defendant, suspect or defense attorney may request the military judge for search, seizure, inspection of evidence, examination of witness or expert evidence even before the first court date. <Amended on Jan. 6, 2016> |
| (2) | The military judge on the receipt of a request under paragraph (1) shall have the same authority as the military court or presiding judge concerning the disposition of such request. |
| (3) | When making a request prescribed in paragraph (1), reasons therefor shall be explained in writing. |
| (4) | An appeal against a ruling dismissing a request prescribed in paragraph (1) may be filed within three days. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227 (Perusal, etc. of Documents) |
The military prosecutor, defendant, suspect or defense attorney may peruse or duplicate documents and articles of evidence concerning disposition prescribed in Article 226 with the leave of a military judge. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 227-2 (Bearing Court Costs by Defendants) |
| (1) | When a sentence is pronounced, the defendant may be required to bear fully or partially court costs: Provided, That where the defendant is unable to bear court costs due to economic condition, this shall not apply. |
| (2) | Even when no sentence is pronounced, a defendant may be required to bear costs that have arisen from a cause attributable to the defendant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-3 (Court Costs of Accomplices) |
Accomplices may be required to bear court costs jointly and severally.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-4 (Bearing Court Costs by Complainants, etc.) |
Where judgment of being not guilty or judgement of acquittal has been pronounced to a defendant over a case of complaint or accusation for which public prosecution was instituted, the complainant or accuser may be required to fully or partially bear court costs if the complainant or accuser had intention or gross negligence.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-5 (Withdrawal, etc. of Appeals by Military Prosecutors and Bearing Court Costs) |
Where only a military prosecutor lodges an appeal or has requested a retrial, the defendant shall not be required to bear court costs if such appeal or request for retrial is dismissed or withdrawn. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 227-6 (Bearing Court Costs by Third Parties) |
| (1) | Where a person other than the military prosecutor lodges an appeal or requested a retrial, such person may be required to bear court costs if such appeal or request for retrial has been dismissed or withdrawn. <Amended on Jan. 6, 2016> |
| (2) | Paragraph (1) shall apply even where an appeal or retrial lodged or requested by a person other than the defendant is withdrawn. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-7 (Trial of Court Costs) |
| (1) | Where judicial proceedings end by court decision and the defendant is to be required to bear court costs, it shall be brought to trial ex officio. |
| (2) | As for a trial prescribed in paragraph (1), an objection may be lodged only when an appeal is filed against a court decision on the merits. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-8 (Decision on Assumption of Court Costs by Third Parties) |
| (1) | Where judicial proceedings end by court decision and a person other than the defendant is to be required to bear court costs, it shall be determined ex officio. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-9 (Completion of Proceedings by Cause other than Trial) |
| (1) | Where judicial proceedings end by a cause other than trial, the military court or Supreme Court in which such case has been pending lately shall determine ex officio how the court costs are to be borne. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-10 (Calculation of Amounts to be Borne) |
Where an amount is not indicated in the court decision rendering an order of bearing court costs, the military prosecutor directing the execution thereof shall calculate and fix such amount. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-11 (Judgment of Innocence and Compensation for Expenses) |
| (1) | Where the judgment of innocence becomes final and conclusive, the State shall compensate the person who has been a defendant of the relevant case for expenses incurred in such case. |
| (2) | In any of the following cases, the State shall be allowed not to fully or partially compensate the expenses prescribed in paragraph (1): |
| 1. | Where the person who was the defendant is found to have been prosecuted because he/she made a false confession or fabricated evidence of guilt with an attempt to mislead the investigation or trial; |
| 2. | Where, by a single trial, the judgment of innocence is concluded on part of multiple offenses, but the judgment of guilt is concluded on the other part; |
| 4. | Where such expenses have occurred due to a cause attributable to the person who was a defendant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-12 (Procedures, etc. for Compensation for Expenses) |
| (1) | Compensation for expenses under Article 227-11 (1) shall be determined by the military court that has delivered the judgment of innocence at the request of the person who was a defendant. |
| (2) | The request under paragraph (1) shall be filed within three years from the date on which the person comes to know that the judgment of acquittal has become final and conclusive and five years from the date on which such judgment became final and conclusive. <Amended on Jun. 9, 2020> |
| (3) | An immediate appeal may be made against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-13 (Extent of Compensation for Expenses) |
| (1) | The extent of compensation for expenses prescribed in Article 227-11 shall be limited to travel expenses, daily allowances and lodging expenses incurred in preparing by the person who has been a defendant or his/her defense attorney for trial in attending the court on the court date, and remuneration for the person who was a defense attorney. In such cases, the Criminal Procedure Costs Act shall apply mutatis mutandis to the compensation money, but provisions concerning witnesses shall apply mutatis mutandis to a person who has been a defendant, while provisions concerning public defenders shall apply mutatis mutandis to a person who has been a defense attorney. |
| (2) | Where two or more defense attorneys have attended the preparation for trial or the court on the court date, the military court may limit travel expenses, daily allowances and lodging expenses of persons who have been a defense attorney to the expenses for the representative defense attorney or some of the defense attorneys, considering the nature of the case, status of trial and other circumstances. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 227-14 (Provisions Applicable Mutatis Mutandis) |
The examples of compensation prescribed by the Act on Criminal Compensation and Restoration of Impaired Reputation shall apply to the claim of compensation for expenses, procedures for compensation for expenses, relationship between compensation for expenses and compensation for damage under other Acts, assignment and seizure of a right to compensation, or compensation for expenses payable to the heir to the person who was a defendant, except for those prescribed by this Act. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
CHAPTER II FIRST INSTANCE
| Article 228 (Investigation by Military Prosecutors and Military Judicial Police Officers) |
| (1) | When a military prosecutor or military judicial police officer suspects that an offense has occurred, he/she shall investigate offenders, facts constituting an offense and evidence. <Amended on Jan. 6, 2016> |
| (2) | Where a military judicial police officer commenced an investigation and has booked a person, or has been transferred a booked case, he/she shall notify the relevant military prosecutors’ office of the fact. |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 229 (Matters to Be Observed) |
| (1) | In principle, investigation into a suspect shall be conducted without physical detention. |
| (2) | A military prosecutor, assistant military judicial police officer or any other person related to investigation in the line of duty shall rigidly maintain confidentiality, respect the human rights of the suspects or other persons, and take care not to obstruct investigation. <Amended on Jan. 6, 2016> |
| (3) | A military prosecutor, assistant military judicial police officer or any other person related to investigation in the line of duty shall prepare a list of all of the documents or articles he/she has prepared or acquired with respect to the investigation in the process thereof. <Newly Inserted on Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 230 (Inspection of Places of Arrest and Detention by Military Prosecutors) |
| (1) | A military prosecutor shall inspect the places of investigative institutions under command, in which a suspect has been arrested or detained, at least once every month in order to investigate whether illegal arrest or detention has been made. The inspecting military prosecutor shall interrogate the arrested or detained persons and examine relevant papers. <Amended on Jan. 6, 2016> |
| (2) | Where reasonable grounds to suspect that a person has been arrested or detained without due process exist, the military prosecutor shall order the investigative institution to immediately release the arrested or detained person, or to transfer such case to the prosecutors’ office. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 231 (Investigation and Necessary Examination) |
| (1) | Necessary examinations may be made in order to achieve the purpose of investigation: Provided, That in cases of compulsory measures, such measures shall be taken to the minimum extent only when express provisions exist in this Act. |
| (2) | When an investigation is conducted, the inquiry of matters necessary for investigation may be requested to public offices or other public or private organizations and such offices and organizations shall report thereon upon the request. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 232 (Requests for Suspects to Appear) |
The military prosecutor or military judicial police officer may request suspects to appear to hear their statements if necessary for investigation. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 232-2 (Arrest under Warrant) |
| (1) | When reasonable grounds to suspect that a suspect has committed an offense exist, and that such person refuses or is likely to refuse a request for appearance prescribed in Article 232 without justifiable grounds, a military prosecutor may request an arrest warrant to the military judge of the competent general military court, have an arrest warrant issued, and arrest such suspect; a military judicial police officer may file an application with a military prosecutor and arrest such suspect after having an arrest warrant issued by the military judge of the competent military court at the request of such military prosecutor: Provided, That in cases falling under a maximum fine not exceeding 500,000 won, misdemeanor imprisonment or minor fine, arrest shall be made only where the suspect has no fixed abode, or the suspect has failed to comply with a request for appearance prescribed in Article 232 without justifiable reasons. <Amended on Jan. 6, 2016> |
| (2) | If the military judge of a general military court who has received a request prescribed in paragraph (1) recognizes it reasonable, he/she shall issue an arrest warrant: Provided, That where needs for arrest are not clearly recognized, this shall not apply. |
| (3) | If the military judge of a general military court who has received a request prescribed in paragraph (1) does not issue an arrest warrant, he/she shall write the purport and reason thereof in the request form, put signature and seal thereon, and deliver it to the military prosecutor who has requested. <Amended on Jan. 6, 2016> |
| (4) | Where an arrest warrant has been requested or has been issued in the past for the suspect over the same facts constituting an offense when a request prescribed in paragraph (1) is made, the military prosecutor shall write the gist of requesting again for an arrest warrant and reasons therefor. <Amended on Jan. 6, 2016> |
| (5) | If an arrested suspect is to be detained, a detention warrant shall be requested pursuant to Article 238 within 48 hours from arrest, and if a detention warrant is not requested within such time limit, the suspect shall be immediately released. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 232-3 (Emergency Arrest) |
| (1) | Where circumstances are urgent and it is impossible to obtain an arrest warrant from a military judge of a general military court when there are considerable reasons to suspect that a suspect has committed an offense corresponding to capital punishment, imprisonment with labor for an indefinite term, or a maximum term of imprisonment with or without labor for up to three years, and a cause falling under any of the following subparagraphs exists, the military prosecutor or military judicial police officer may arrest such suspect without an arrest warrant after notifying him/her of such fact. In such cases, the term "circumstances are urgent" means cases where no time to obtain an arrest warrant exists, such as that a suspect was found by chance, etc.: <Amended on Jan. 6, 2016> |
| 1. | When the suspect is likely to destroy evidence; |
| 2. | Where the suspect flees or is likely to flee. |
| (2) | Where a military judicial police officer arrests a suspect pursuant to paragraph (1), he/she shall immediately obtain approval from the military prosecutor. <Amended on Jan. 6, 2016> |
| (3) | Where a military prosecutor or military judicial police officer arrests a suspect pursuant to paragraph (1), he/she shall immediately prepare an emergency arrest report. <Amended on Jan. 6, 2016> |
| (4) | The gist of facts constituting an offense, reasons for emergency arrest, etc. shall be inserted in the emergency arrest report under paragraph (3). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 232-4 (Emergency Arrest and Period of Request for Warrant) |
| (1) | Where a military prosecutor or military judicial police officer arrests a suspect pursuant to Article 232-3 and intends to detain the suspect, the military prosecutor shall, without delay, request a detention warrant to the military judge of the competent general military court; the military judicial police officer shall file an application with the military prosecutor and the military prosecutor shall request a detention warrant to the military judge of the competent military court. In such cases, a detention warrant shall be requested within 48 hours from the arrest of suspect with an emergency arrest report under Article 232-3 (3) attached. <Amended on Jan. 6, 2016> |
| (2) | When a detention warrant is not requested pursuant to paragraph (1) or is not issued, such suspect shall be released immediately. |
| (3) | The person who has been released pursuant to paragraph (2) shall not be arrested for the same offense without a warrant. |
| (4) | Where a military prosecutor releases a suspect without requesting a detention warrant under paragraph (1), he/she shall notify the court of the following matters in writing within 30 days from the date of release. In such cases, a copy of the emergency arrest report shall be attached: <Amended on Jan. 6, 2016> |
| 1. | Personal information of the person released after emergency arrest; |
| 2. | Time, date and place of emergency arrest and detailed reasons therefor; |
| 3. | Time, date and place of release and reasons therefor; |
| 4. | Name of the military prosecutor or military judicial police officer who has conducted the emergency arrest and release of suspect. |
| (5) | The person who is released after emergency arrest, defense attorney, legal representative, spouse, lineal relatives or siblings thereof may peruse or duplicate the notice and relevant documents. |
| (6) | Where the military judicial police officer does not request detention warrant of a suspect and releases such suspect, he/she shall immediately notify such fact to the military prosecutor. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 232-5 (Notification of Arrest, Suspicion, etc.) |
Where a military prosecutor or military judicial police officer arrests a suspect, he/she shall inform the gist of allegation, reasons for arrest and right to appoint a defense attorney, and give the suspect an opportunity to vindicate himself/herself. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 232-6 (Provisions to be Applied Mutatis Mutandis) |
Article 114, the main body of Article 119 (1), Article 119 (3), Articles 120, 121, 123 (1), (3) and (4), 124 through 127, 129 through 131, 133 and 141 (5), and the proviso to Article 142 (2) shall apply mutatis mutandis where the military prosecutor or military judicial police officer arrests a suspect. In such cases, "detention" shall be construed as "arrest," "detention warrant" as "arrest warrant," and "defendant" as "suspect." <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 233 (Interrogation of Criminal Suspect) |
When a military prosecutor or military judicial police officer examines a suspect, he/she shall, first of all, inquire his/her name, age, place of registration, post, rank, service number, resident registration number, dwelling and occupation, thereby confirming whether the person is exactly the suspect. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 234 (Matters concerning Interrogation of Criminal Suspect) |
A military prosecutor or military judicial police officer shall examine a suspect about matters concerning facts constituting an offense and circumstances, and provide him/her an opportunity to state facts favorable to himself/herself. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 235 (Interrogation of Criminal Suspect and Attendant) |
When a military prosecutor examines a suspect, he/she shall have an investigator or clerk of the Military Prosecutors’ Office participate in the examination; when a military judicial police officer examines a suspect, he/she shall have an assistant military judicial police officer participate in the examination. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 235-2 (Defense Counsel's Participation) |
| (1) | At the request of a suspect, defense attorney, legal representative, spouse, lineal relatives or siblings thereof, the military prosecutor or military judicial police officer shall allow a defense attorney to interview the suspect, or to attend the examination of suspect unless any justifiable reason exists. <Amended on Jan. 6, 2016> |
| (2) | When two or more defense attorneys intend to attend the examination, the suspect shall designate a defense attorney to attend the examination. Where the suspect does not designate a defense attorney, the military prosecutor or military judicial police officer may designate a defense attorney. <Amended on Jan. 6, 2016> |
| (3) | The defense attorney attending the examination may make a statement after examination: Provided, That even in the course of an examination, he/she may raise an objection against the unreasonable methods of examination, and may state his/her opinions with the approval of the military prosecutor or military judicial police officer. <Amended on Jan. 6, 2016> |
| (4) | The defense attorney shall be required to put his/her name and seal or sign on the protocol of examination of suspect in which his/her opinions prescribed in paragraph (3) are inserted after perusal. |
| (5) | The military prosecutor or military judicial police officer shall write matters concerning the attendance of defense attorney at the examination and restrictions thereon in the suspect examination protocol. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 236 (Formation of Protocol concerning Interrogation of Criminal Suspect) |
| (1) | The statement of a suspect shall be inserted in the protocol. |
| (2) | The protocol under paragraph (1) shall be available to the suspect for perusal or be read to him/her; the suspect shall be asked whether any part of it is not written as he/she has stated or is different from the fact, and if the suspect raises an objection, such as request for addition or exclusion, request for alteration, etc., or has stated opinions, such matters shall be additionally inserted in the protocol. In such cases, the part against which the suspect has raised an objection shall be left to be read. |
| (3) | When the suspect states that he/she has no objection or opinion concerning the protocol, the suspect shall be requested to write the gist in his/her own handwriting, and be required to put his/her name and seal or sign thereon after affixing a seal on the folds of each overlapping page of the protocol. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 236-2 (Video Recording of Criminal Suspect's Statements) |
| (1) | The statements of a suspect may be recorded on video tapes. In such cases, the fact that the statement will be recorded on video tapes shall be notified in advance, and the entire process from the beginning to the end of examination and objective circumstances shall be recorded on the video tapes. |
| (2) | When the recording on video tapes prescribed in paragraph (1) is finished, the original copy shall be, without delay, sealed in the presence of the suspect or defense attorney, and the suspect shall be required to put his/her name and seal or sign thereon. |
| (3) | In cases under paragraph (2), if the suspect or defense attorney makes a request, video recordings shall be reproduced so that he/she may view such video recordings. In such cases, if an objection against the contents thereof is stated, a document in which the gist of such objection is written shall be attached. |
[This Article Newly Inserted on Jan. 17, 2008]
| Article 236-3 (Announcement of Right to Refuse to Make Statements and Other Rights) |
| (1) | Prior to the examination of a suspect, a military prosecutor or military judicial police officer shall inform the suspect that: <Amended on Jan. 6, 2016> |
| 1. | He/she may be exempt from making any statement or answering respective questions; |
| 2. | Remaining silent shall not be used against him/her; |
| 3. | The statement made by after waiving his/her right to remain silent can be used as evidence of guilt in the court; |
| 4. | He/she has a right to assistance of counsel, such as having a defense attorney attend the examination, etc. |
| (2) | The military prosecutor or military judicial police officer shall ask the suspect whether he/she will exercise the right to refrain from making statements and the right to have the assistance of counsel after informing him/her of the matters prescribed in paragraph (1), and write the suspect’s answer in the protocol. In such cases, the military prosecutor or military judicial police officer shall have the suspect write his/her answer in his/her own handwriting, or the military prosecutor or military judicial police officer shall write the suspect’s answer and have the suspect put his/her name and seal or sign on such part of the protocol. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 236-4 (Recording of Investigation Process) |
| (1) | The military prosecutor or military judicial police officer shall write the time when the suspect arrived at the place of examination, time when the interrogation starts and completes, and other matters necessary for confirming the progress of examination in the suspect examination protocol, or write such matters in a separate document and file it in the investigation record. <Amended on Jan. 6, 2016> |
| (2) | Article 236 (2) and (3) shall apply mutatis mutandis to the protocol or document under paragraph (1). |
| (3) | Where a person who is not a suspect is examined, paragraphs (1) and (2) shall apply mutatis mutandis. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 236-5 (Special Rules for Persons in Need of Special Protection, such as Disabled Persons) |
In any of the following cases, when the military prosecutor or military judicial police officer examines a suspect, he/she may allow a person in the dependant relationship with the suspect to attend the examination ex officio or at the request of the suspect or legal representative: <Amended on Jan. 6, 2016>
| 1. | If the suspect is incompetent to discern right and wrong, or lacks sufficient mental capacity to make a decision and to convey intentions due to mental or physical disorder; |
| 2. | If it is necessary for the psychological stability of the suspect and smooth communication with the suspect in consideration of the age, sex, nationality, etc. of the suspect. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 237 (Cross Examination) |
When it is necessary to find facts, the military prosecutor or military judicial police officer may have a suspect confront another suspect or a person other than a suspect. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | Where reasons are sufficient to suspect that a suspect has committed an offense and causes falling under any of the subparagraphs of Article 110 (1) exist, the military prosecutor may request a detention warrant to the military judge of the competent general military court and obtain a detention warrant and detain such suspect; the military judicial police officer may file an application for detention warrant to the military prosecutor, and obtains a detention warrant from the military judge of the competent general military court at the request of the military prosecutor and detain such suspect: Provided, That in cases of offenses falling under a maximum fine not exceeding 500,000 won, misdemeanor imprisonment or minor fine, arrest shall be made only where the suspect has no fixed abode. <Amended on Jan. 6, 2016> |
| (2) | When a detention warrant is requested, data justifying the necessity of detention shall be submitted. |
| (3) | When the military prosecutor makes a request for detention warrant, he/she shall obtain approval from the head of a unit under which the relevant Military Prosecutors’ Office is established. <Amended on Jan. 6, 2016> |
| (4) | The military judge of the competent general military court on the receipt of a request under paragraph (1) shall promptly determine whether to issue a detention warrant. |
| (5) | If the military judge of the competent general military court on the receipt of a request under paragraph (1) recognizes that such request is reasonable, he/she shall issue a detention warrant. If he/she does not issue a detention warrant, he/she shall state the gist and reasons therefor in the request, and put his/her signature and seal thereon and return the request to the military prosecutor who has made the request. <Amended on Jan. 6, 2016> |
| (6) | Where an arrest warrant has been requested or has been issued in the past for the suspect over the same facts constituting an offense when a request prescribed in paragraph (1) is made, the military prosecutor shall write the gist of a further request for arrest warrant and reasons therefor. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 238-2 (Request for Detention Warrant and Interrogation of Suspects) |
| (1) | The military judge of a general military court on the receipt of a request for detention warrant for an arrested suspect pursuant to Article 232-2, 232-3 or 248 shall interrogate such suspect without delay. In such cases, he/she shall conduct interrogation by no later than the following day of the date a request for detention warrant was made. |
| (2) | The military judge of a general military court on the receipt of a request for detention warrant for a suspect other than the one under paragraph (1) shall issue a detention warrant for compulsory appearance, and compel such suspect to appear to interrogate where it is reasonable to suspect that such suspect has committed an offense: Provided, That where interrogation is impossible, such as that the suspect has fled, etc., this shall not apply. |
| (3) | The military judge of a general military court shall notify the military prosecutor, suspect and defense attorney of the time and place of hearing for examination, immediately in cases under paragraph (1) and immediately after taking the suspect into custody in cases under paragraph (2). In such cases, the military prosecutor shall have the suspect attend the hearing on interrogation day if the suspect is under arrest. <Amended on Jan. 6, 2016> |
| (4) | The military prosecutor and the defense attorney may attend the hearing on the interrogation day and make a statement. <Amended on Jan. 6, 2016> |
| (5) | When the military judge of a general military court conducts interrogation pursuant to paragraphs (1) and (2), he/she shall take measures necessary for the separate interrogation of accomplices and other measures necessary for the protection of confidential information of investigation. |
| (6) | The clerk shall prepare a protocol of the gist, etc. of interrogation where a suspect is interrogated pursuant to paragraph (1) or (2). |
| (7) | Where a suspect is interrogated, the period from the date the military court received a request for detention warrant, documents relating to investigation and articles of evidence to the date the military court issues a detention warrant and return such documents and articles of evidence shall not be counted in the detention period, in the application of Articles 239 and 240. |
| (8) | If a suspect to be interrogated has no defense attorney, the military court shall appoint a defense attorney ex officio. In such cases, the appointment of defense attorney shall remain effective until the trial in the court of first instance except for the cases where the request for detention warrant for suspect is dismissed and becomes invalid. |
| (9) | When no defense attorney exists because the ruling of appointment of a defense attorney has been cancelled due to circumstances of the appointed defense attorney or other reasons, the military court may reappoint a defense attorney ex officio. |
| (10) | Articles 111, 111-2, 114, 119 through 121, 123 (1), (3) and (4), 124, 125, 127 (1), 129 through 131 and 232-5 shall apply mutatis mutandis to the compulsory appearance under paragraph (2), and Articles 82, 85, 87, 87-3 and 326-2 shall apply mutatis mutandis to the interrogation of suspects. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 239 (Period of Detention by Military Judicial Police Officers) |
Where a military judicial police officer detains a suspect, he/she shall release such suspect unless he/she escorts the suspect to the military prosecutor within ten days. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 240 (Period of Detention by Military Prosecutors) |
When a military prosecutor detains a suspect or has assumed custody of a suspect from the military judicial police officer, he/she shall release such suspect unless he/she institutes a public prosecution within ten days. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 240-2 (Calculation of Period of Detention) |
Where the suspect is arrested or taken to court for compulsory appearance pursuant to Article 232-2, 232-3, 238-2 (2) or 248, the period of detention prescribed in Article 239 or 240 shall be counted from the date such suspect was arrested or taken to court for compulsory appearance. [This Article Wholly Amended on Dec. 29, 2009]
| Article 241 (Issuance of Warrant and Notification to Military Court) |
When the military prosecutor does not arrest or detain a suspect after having been issued with an arrest warrant or detention warrant, or releases an arrested suspect or detained suspect, he/she shall without delay notify the military court that has issued the warrant of the reason in writing. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 242 (Extension of Detention Period) |
| (1) | Where the military judge of a general military court recognizes that sufficient reasons exist to continue investigation at the application of a military prosecutor, he/she may permit the extension of the detention period under Article 240 only one time within the extent that not exceeding ten days. <Amended on Jan. 6, 2016> |
| (2) | When an application prescribed in paragraph (1) is filed, data for which needs for extension can be recognized as necessary shall be submitted. |
| (3) | Article 238 (3) shall apply mutatis mutandis to the application for the extension of detention period prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 243 Deleted. <Dec. 28, 1999> |
| Article 244 Deleted. <Dec. 28, 1999> |
| Article 245 (Restrictions on Redetention) |
| (1) | A person who was detained and has been released by a military prosecutor or military judicial police officer shall not be again detained for the same facts constituting an offense unless another important evidence is found. <Amended on Jan. 6, 2016> |
| (2) | In cases under paragraph (1), acts performed simultaneously or in the relationship between the means and end for one purpose shall be deemed facts constituting the same offense. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 246 (Provisions to be Applied Mutatis Mutandis) |
Articles 110 (2), 111 and 114, the main body of Article 119 (1), Article 119 (3) and (4), Articles 120 through 127, 129 through 131, 133 and 141 (1) and (2), the main body of Article 142 (2) (excluding the part concerning the cancellation of bail) and Article 232-5 shall apply mutatis mutandis to the detention of suspects by the military prosecutors or military judicial police officers, but, the entrustment of investigation and execution of detention warrant prescribed in Article 122 shall be conducted only by the military prosecutors. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 247 (Flagrant Offenders and Quasi-flagrant Offender) |
| (1) | A person who is in the act of committing an offense or has just committed it is a flagrant offender. |
| (2) | A person who falls under any of the following subparagraphs shall be deemed a flagrant offender: |
| 1. | A person who is pursued as an offender; |
| 2. | A person who keeps stolen goods, deadly weapons or other objects sufficiently recognized as having been used in a crime; |
| 3. | A person whose body or clothes bear indubitable marks of evidence; |
| 4. | A person who attempts to flee when questioned. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 248 (Arrest of Flagrant Offender) |
Any person can arrest flagrant offender without a warrant.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 249 (Surrender of Arrested Flagrant Offender) |
| (1) | Where a person other than a military prosecutor or assistant military judicial police officer arrests an offender in the act of committing an offense, he/she shall immediately hand over the offender to the military prosecutor or assistant military judicial police officer. <Amended on Jan. 6, 2016> |
| (2) | When the custody of flagrant offenders transferred to the assistant military judicial police officer, he/she shall ask name and address of the arrester and reasons therefor, and may request the arrester to accompany to the military judicial police office. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 250 (Provisions to be Applied Mutatis Mutandis) |
Articles 127, 129, 130, 232-2 (5) and 232-5 shall apply mutatis mutandis where the military prosecutor or assistant military judicial police officer arrests or is handed over an offender in the act of committing an offense. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 251 (Minor Cases and Arrest of Offenders in Act) |
Articles 248 through 250 shall apply to flagrant offender punishable by a maximum fine not exceeding 500,000 won, misdemeanor imprisonment or minor fine, only when such offender has no fixed abode. [This Article Wholly Amended on Dec. 29, 2009]
| Article 252 (Review of Legality of Arrest and Detention) |
| (1) | A suspect who has been arrested or is under detention, his/her defense attorney, legal representative, spouse, lineal relatives, siblings, live-in partner or employer may request the competent general military court for review on the legality of arrest or detention. |
| (2) | The military prosecutor or military judicial police officer who has arrested or detained a suspect shall inform such suspect who has been arrested or is under detention and a person designated by such suspect from among the persons prescribed in paragraph (1) of the fact that he/she can request review on legality under paragraph (1). <Amended on Jan. 6, 2016> |
| (3) | When a request under paragraph (1) falls under any of the following subparagraphs, the military court may dismiss the request by ruling without holding a interrogatory hearing under paragraph (4): |
| 1. | When a person other than the person authorized to request makes a request, or a request for review is made once again on the issuance of the same arrest warrant or detention warrant; |
| 2. | When it is obvious that the accomplices or co-suspects makes successive requests for review with an intention to interfere with investigation. |
| (4) | The military court upon the receipt of a request under paragraph (1) shall interrogate the arrested or detained suspect, examine documents and articles of evidence concerning investigation within 48 hours from the time such request was received, and dismiss such request by ruling if it recognizes that such request is groundless or order to release the arrested or detained suspect by ruling if it recognizes that such request has good reasons. The same shall apply where a public prosecution has been instituted against such suspect after a request for review was filed. |
| (5) | The military court may order to release the detained suspect (including persons against whom a public prosecution has been instituted after a request for review was made) pursuant to paragraph (4) by ruling on condition that deposit money enough to guarantee the appearance of such suspect is paid: Provided, That this shall not apply to any of the following cases: |
| 1. | Where sufficient reasons exist to believe that such defendant is likely to destroy the evidence of crime; |
| 2. | Where sufficient reasons exist to believe that such defendant inflicts or is likely to inflict harm to the life, body or property of the victim, a person recognized as having knowledge of facts necessary for the trial of the relevant case, or relatives thereof. |
| (6) | Where release prescribed in paragraph (5) is determined, restrictions on dwelling, duty to be present at the time, on the date and at the place designated by the military court or military prosecutor, and other appropriate conditions may be attached thereto. <Amended on Jan. 6, 2016> |
| (7) | Articles 138 and 140 shall apply mutatis mutandis to the release on condition that deposit money is paid pursuant to paragraph (5). |
| (8) | No appeal shall be lodged against rulings under paragraphs (3) and (4). |
| (9) | The military prosecutor, defense attorney or requester may present himself/herself on the date of interrogation prescribed in paragraph (4) and state his/her opinions. <Amended on Jan. 6, 2016> |
| (10) | Article 62 shall apply mutatis mutandis where the arrested or detained suspect has no defense attorney. |
| (11) | Where the military court interrogates suspects pursuant to paragraph (4), it shall take appropriate measures to protect the confidentiality of investigation including separate interrogation of accomplices. |
| (12) | The military judge who has issued an arrest warrant or detention warrant shall not be allowed to be involved in the interrogation, examination and ruling prescribed in paragraphs (4) through (6): Provided, That where no military judge to interrogate, examine or render a ruling exists except for the military judge who has issued an arrest warrant or detention warrant, this shall not apply. |
| (13) | The period from the date the military court receives investigation-related documents and articles of evidence to the date such documents and materials are returned to the Military Prosecutors’ Office after rendering a ruling shall not be included in the time limit when Articles 232-2 (5) (including cases where such provisions apply mutatis mutandis as prescribed in Article 250) and 232-4 (1) are applied, and shall not be included in the period of detention when Articles 239, 240 and 242 are applied. |
| (14) | Article 238-2 (6) shall apply mutatis mutandis where a suspect is interrogated pursuant to paragraph (4). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 253 (Restrictions on Rearrest and Re-Detention) |
| (1) | A suspect who has been released upon a ruling following a review of legality of arrest or detention prescribed in Article 252 (4) shall not be rearrested or re-detained for the same facts constituting an offense unless he/she flees or destroys the evidence of offense. |
| (2) | A suspect who has been released pursuant to Article 252 (5) shall not be rearrested or re-detained for the same facts constituting an offense unless he/she has any of the following reasons: |
| 2. | When sufficient reasons exist to believe that he/she is likely to flee or destroy the evidence of crime; |
| 3. | When he/she fails to appear without justifiable grounds after receiving a request for appearance; |
| 4. | When he/she violates restrictions on dwelling or other conditions determined by the military court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 253-2 (Confiscation of Deposit Money) |
| (1) | In any of the following cases, the military court may confiscate all or part of the deposit paid pursuant to Article 252 (5) ex officio or by ruling at the request of the military prosecutor: <Amended on Jan. 6, 2016> |
| 1. | When a person who has been released pursuant to Article 252 (5) is re-detained on grounds enumerated in Article 253 (2); |
| 2. | When the military court re-detains a person who was released as prescribed in Article 252 (5) for the same facts constituting an offense after a public prosecution has been instituted. |
| (2) | Where a person who had been released pursuant to Article 252 (5) was sentenced to punishment for the same facts constituting a crime, which became final, fails to appear without justifiable grounds or has fled, the military court shall confiscate, by ruling, all or part of the bail money ex officio at the request of the military prosecutor. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 254 (Search, Seizure, and Examination of Evidence) |
| (1) | If necessary for the investigation of a crime, the military prosecutor may conduct search, seizure or examination of evidence according to the warrant issued by the military judge of the competent general military court, only when there are circumstances where a criminal suspect is suspected of having committed a crime and the articles or persons to be seized, searched, or inspected are deemed to be connected with the relevant case. <Amended on Jan. 6, 2016; Jun. 9, 2020> |
| (2) | If necessary for the investigation of a crime, the military judicial police officer conduct search, seizure or examination of evidence according to the warrant issued by the military judge of the competent general military court at the request of a military prosecutor based on the application of such military judicial police officer, only when there are circumstances where a criminal suspect is suspected of having committed a crime and the articles or persons to be seized, searched, or inspected are deemed to be connected with the relevant case. <Amended on Jan. 6, 2016; Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 255 (Compulsory Disposition without Warrants) |
| (1) | Where a military prosecutor or military judicial police officer arrests or detains a suspect pursuant to Article 232-2, 232-3, 238 or 248, he/she may, if necessary, take any of the following dispositions without a warrant: <Amended on Jan. 6, 2016> |
| 1. | Investigation of the suspect in the dwelling of another person, or house, structure, aircraft, ship or automobile managed by another person; |
| 2. | Search, seizure or examination of evidence at the place of arrest. |
| (2) | Where the military prosecutor or military judicial police officer executes a detention warrant on a suspect, paragraph (1) 2 shall apply mutatis mutandis. <Amended on Jan. 6, 2016> |
| (3) | When it is impossible to obtain a warrant issued by a military judge of the competent general military court due to urgency at the crime scene in the act of a crime or immediately after a crime was committed, search, seizure or examination of evidence may be conducted without a warrant. In such cases, a warrant shall be obtained ex post facto without delay. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 256 (Compulsory Disposition without Warrants) |
| (1) | Where it is necessary to urgently seize objects owned, held or kept by a person arrested pursuant to Article 232-3, the military prosecutor or military judicial police officer may conduct search, seizure or examination of evidence without a warrant only within 24 hours from the time of arrest. |
| (2) | If it is necessary to continue the seizure of objects seized pursuant to paragraph (1) or Article 255 (1) 2, the military prosecutor or military judicial police officer shall request a warrant of search and seizure without delay. In such cases, the request for a warrant of search and seizure shall be made within 48 hours from the time of arrest. <Amended on Jan. 6, 2016> |
| (3) | When a military prosecutor or military judicial police officer has not been issued a warrant of search and seizure requested pursuant to paragraph (2), he/she shall immediately return seized articles. <Amended on Jan. 6, 2016; Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 257 (Seizure without Warrants) |
The military prosecutor or military judicial police officer may seize objects left behind by a suspect or another person, or objects voluntarily submitted by the owner, holder or keeper without a warrant. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 257-2 (Return or Temporary Return of Seized Articles) |
| (1) | The military prosecutor shall return or temporarily return, seized articles which are no longer deemed necessary to seize in such case as their copies are secured, or articles to be used as evidence, upon request of the owner, possessor, custodian, or presenter, even before a prosecution is filed. |
| (2) | Where the military prosecutor refuses to accept the request under paragraph (1), the applicant may apply for a decision on return or temporary return of the seized articles with a military court corresponding to the general prosecutors’ offices to which the relevant military prosecutor belongs. |
| (3) | Where the military court decides return or temporary return with respect to the application under paragraph (2), the military prosecutor shall return or temporarily return the seized articles to the applicant. |
| (4) | Paragraphs (1) through (3) shall apply mutatis mutandis to the disposition of return or temporary return by military judicial police officers. In such cases, the military judicial police officers shall obtain approval from a military prosecutor. |
[This Article Newly Inserted on Jun. 9, 2020]
| Article 258 (Provisions to be Applied Mutatis Mutandis) |
Articles 146, 147 and 149 through 152, 154, the main sentence of Article 156 (1), Article 156 (2) and (3), Articles 159 through 173, 175, 176, 181, 182, 390 (2) and 528 shall apply mutatis mutandis where the military prosecutor or military judicial police officer conducts search, seizure or examination of evidence in accordance with the provisions under this Chapter: Provided, That where a military judicial police officer conducts disposition prescribed in Articles 171, 173 and 175, he/she shall obtain approval from the military prosecutor. <Amended on Jan. 6, 2016; Jun. 9, 2020> [This Article Wholly Amended on Dec. 29, 2009]
| Article 259 (Emergency Disposition) |
Where it is urgent when disposition prescribed in Article 255 is conducted, noncompliance with Articles 164 (2) and 166 shall be allowed. [This Article Wholly Amended on Dec. 29, 2009]
| Article 260 (Request, etc. for Appearance of Third Parties) |
| (1) | The military prosecutor or military judicial police officer may, if necessary for investigation, request persons other than a suspect to appear and hear their statements. In such cases, video tape recordings may be made with the approval of such persons. <Amended on Jan. 6, 2016> |
| (2) | The military prosecutor or military judicial police officer may, if necessary for investigation, commission expert witness, interpretation or translation. <Amended on Jan. 6, 2016> |
| (3) | Articles 204-2 (1) through (3) shall apply mutatis mutandis to cases in which the military prosecutor or military judicial police officer investigates a victim of crime. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 260-2 (Special Cases concerning Appointment of Defense Attorney for Victims of Crimes Among Military Personnel) |
| (1) | A victim of a crime committed between persons prescribed in Article 1 (1) through (3) of the Military Criminal Act and his/her legal representative (hereafter in this Article, referred to as "victim, etc.") may appoint a defense attorney in order to defend them against any damage that may be inflicted in criminal proceedings and to provide legal assistance. |
| (2) | The defense attorney referred to in paragraph (1) may participate in the investigation of the victim, etc. by a military prosecutor or a military judicial police officer to state his/her views: Provided, That when the investigation is under way, the defense attorney may state his/her views subject to approval by the military prosecutor or military judicial police officer. |
| (3) | The defense attorney referred to in paragraph (1) may appear before the court to state his/her views at any stage of the examination of the suspect before detention, procedures for preserving evidence, preparatory hearing date, and trial proceedings. In such cases, detailed matters regarding necessary procedures shall be prescribed by the Supreme Court Regulations. |
| (4) | The defense attorney referred to in paragraph (1) may inspect or copy any related document or evidence for his/her case in which evidence is preserved or which is pending in the court. |
| (5) | The defense attorney referred to in paragraph (1) shall have the comprehensive power to act on behalf of the victim, etc. in all procedural acts for which representation is permissible in criminal proceedings. |
[This Article Newly Inserted on Jun. 9, 2020]
| Article 261 (Requests for Examination of Witnesses) |
| (1) | Where a person who is obviously recognized as having knowledge of facts indispensable to the investigation of crime has refused to appear or make a statement prescribed in Article 260, the military prosecutor may request an examination of such person as witness to the military judge by not later than the first court date. <Amended on Jan. 6, 2016> |
| (2) | When a request prescribed in paragraph (1) is made, reasons therefor shall be substantiated in writing. |
| (3) | The military judge who has received a request prescribed in paragraph (1) shall have the same authority for the examination of witness as the military court. |
| (4) | Where the military judge has set a date for the examination of witness according to the request prescribed in paragraph (1), he/she shall notify the defendant, suspect, or defense attorney of the date for examination of witness so that the defendant, suspect, or defense attorney may attend the examination of witness. |
| (5) | When the military judge examines a witness according to the request prescribed in paragraph (1), he/she shall, without delay, dispatch related documents to the military prosecutor. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 262 (Commissioning of Expert Opinions and Requests for Custody for Expert Evidence) |
| (1) | Where the military prosecutor commissions expert evidence pursuant to Article 260, he/she shall, if the disposition of custody prescribed in Article 213 (3) is deemed appropriate, make a request to the military judge. <Amended on Jan. 6, 2016> |
| (2) | If the military judge recognizes the request prescribed in paragraph (1) to be appropriate, he/she shall conduct the disposition of custody. In such cases, Articles 213 and 214 shall apply mutatis mutandis. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 263 (Permit for Disposition Necessary for Expert Evidence) |
| (1) | A person who has been commissioned to give expert evidence pursuant to Article 260 may conduct disposition prescribed in Article 215 (1) with the permission of the military judge. |
| (2) | The request for permission prescribed in paragraph (1) shall be made by the military prosecutor. <Amended on Jan. 6, 2016> |
| (3) | If the military judge recognizes that the request prescribed in paragraph (2) is appropriate, he/she shall issue a permit. |
| (4) | Article 215 (2), (3) and (5) shall apply mutatis mutandis to the permit prescribed in paragraph (3). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 264 (Autopsy of Unnatural or Unexplained Deaths) |
| (1) | When the body of a person who suffers or is suspected of having suffered an unnatural or unexplained death is the body of a person who falls under Article 2, the military prosecutor shall conduct an autopsy. <Amended on Jan. 6, 2016> |
| (2) | Even though the body of a person who suffers or is suspected of having suffered an unnatural or unexplained death is the body of a person who does not fall under Article 2, the military prosecutor shall conduct an autopsy, when such body has been found in barracks, or a military building, automobile, warship or aircraft, the military prosecutor. <Amended on Jan. 6, 2016> |
| (3) | When the autopsy prescribed in paragraph (1) or (2) proves the suspicion of a crime and in times of emergency, the examination of evidence may be made without a warrant. |
| (4) | The military prosecutor may have a military judicial police officer or judicial police officer conduct disposition prescribed in paragraphs (1) through (3). <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 265 (Persons Authorized to File Complaints) |
The victims of a crime may file a complaint.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 266 (Restrictions on Complaints) |
No one shall file a complaint against his/her or spouse's lineal ascendants.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 267 (Persons other than Victims who Are Authorized to File Complaints) |
| (1) | The legal representative of a victim may file a complaint independently. |
| (2) | When the victim has died, his/her spouse, lineal relatives or siblings may file a complaint: Provided, That they shall not file a complaint against the express intention of the victim. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 268 (Persons other than Victims who Are Authorized to File Complaints) |
If the legal representative of a victim or relative of a legal representative is the suspect, the relative of the victim may file a complaint independently.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 269 (Persons other than Victims who Are Authorized to File Complaints) |
As for the offense defaming the deceased, the relatives or descendants of the deceased may file a complaint.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 270 (Designation of Persons Authorized to File Complaints) |
Where there is no one to file a complaint against a crime subject to victim’s complaint, the military prosecutor shall designate a person to file a complaint within ten days from the date a request is made by an interested party. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 271 Deleted. <Jan. 6, 2016> |
| Article 272 (Period of Complaint) |
| (1) | As for crimes subject to victim’s complaint, no complaint shall be filed after the lapse of six months from the date the identity of the offender becomes known: Provided, That where unavoidable reasons preventing a complaint from being filed exist, the period shall be counted from the date such reasons ceased to exist. |
| (2) | Deleted. <Apr. 5, 2013> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 273 (Several Persons Authorized to File Complaints) |
Where several persons are authorized to file a complaint, a failure by one of them to observe the term for filing a complaint shall not affect others' complaint.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 274 (Revocation of Complaints) |
| (1) | A complaint may be withdrawn before judgment of the court of first instance is pronounced. |
| (2) | No person who has withdrawn a complaint shall be allowed to re-file a complaint. |
| (3) | Paragraphs (1) and (2) shall apply mutatis mutandis to the withdrawal of intention of punishment for a case in which a charge cannot be brought against the expressed intention of the victim. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 275 (Indivisibility of Complaints) |
Complaints filed against one or several of the accomplices in a crime subject to victim’s complaint, or revocation thereof shall also have effect on the rest of the accomplices.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 276 (Accusations) |
| (1) | Any person who suspects an offense has been committed may bring an accusation. |
| (2) | When a public official suspects an offense has been committed while performing his/her duties, he/she shall bring an accusation. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 277 (Restrictions on Accusations) |
| Article 266 shall apply mutatis mutandis to accusations. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 278 (Complaints by Proxy) |
Complaints may be raised or withdrawn by a proxy.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 279 (Methods of Complaint and Accusation) |
| (1) | Complaints and accusations shall be filed with the military prosecutor or military judicial police officer in writing or verbally. <Amended on Jan. 6, 2016> |
| (2) | When the military prosecutor or military judicial police officer has received a complaint or accusation filed verbally, he/she shall prepare a protocol. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 280 (Complaints or Accusations and Measures to be Taken by Military Judicial Police Officers) |
When a military judical officer receives a complaint or accusation, he/she shall promptly investigate it and send relevant documents and articles of evidence to the military prosecutor. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 281 (Withdrawal of Complaints or Accusations and Provisions to be Applied mutatis mutandis) |
Articles 279 and 280 shall apply mutatis mutandis to the withdrawal of complaints or accusations. [This Article Wholly Amended on Dec. 29, 2009]
| Article 282 (Self-Surrender and Provisions to be Applied mutatis mutandis) |
Articles 279 and 280 shall apply mutatis mutandis to self-surrender. [This Article Wholly Amended on Dec. 29, 2009]
| Article 283 (Transfer of Cases by Military Judicial Police Officers) |
When the military judicial police officer has conducted an investigation, he/she transfer such case to the military prosecutor together with documents and articles of evidence. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 284 (Reports on Cases by Military Prosecutors) |
When the military prosecutor has conducted an investigation or a case has been transferred to the military prosecutor pursuant to Article 283, he/she shall report on the details of such case together with his/her opinions to the head of a unit in which the relevant Military Prosecutors’ Office is established. In such cases, the military prosecutor of a unit in which a military court is not established shall also report thereon to the Military Prosecutors’ Office of the unit in which competent military court is established. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 285 (Handling of Cases by Military Prosecutors) |
When a military prosecutor has completed investigation of a case, he/she shall conduct any of the following dispositions: <Amended on Jan. 6, 2016>
| 1. | Institution of a public prosecution when instituting the public prosecution is recognized as appropriate; |
| 2. | Disposition not to institute a prosecution when the defendant has not been arrested, authority to institute a prosecution or suspicion of crime is recognized as not in existence, or not instituting a prosecution is recognized as appropriate in consideration of the matters in the subparagraphs of Article 51 of the Criminal Act; |
| 3. | Transfer of such case to the Military Prosecutors’ Office corresponding to another military court when the military court corresponding to the military prosecutors’ office to which he/she is posted has no jurisdiction, or trial by another military court is recognized as appropriate even though the military court corresponding to the Military Prosecutors’ Office to which he/she is posted has jurisdiction. |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 286 (Transfer of Cases to Military Prosecutors) |
When the jurisdiction of a case does not belong to the military court, the military prosecutor shall transfer such case to a prosecutor of the prosecutors’ office corresponding to the competent court having jurisdiction together with documents and articles of evidence. In such cases, the effect of litigation conducted before transfer shall remain the same even after transfer. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 287 (Notification of Results of Handling of Cases) |
The military prosecutor shall notify the military judicial police officer of the results of handling of a case transferred from such military judicial police officer. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 288 (Release of Suspects and Return of Seized Articles) |
When the military prosecutor has conducted disposition not to institute a prosecution, he/she shall, without delay, release detained suspects and return seized articles: Provided, That if necessary, he/she shall be permitted not to return seized articles by the time the statute of limitations expires. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 2 Public Prosecution
| Article 289 (Principle of Public Prosecution by State) |
Public prosecutions shall be instituted and carried out by military prosecutors. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 289-2 (Principle of Discretionary Prosecution) |
Military prosecutors shall be exempt from instituting public prosecution in consideration of the matters prescribed in Article 51 of the Criminal Act. <Amended on Jan. 6, 2016> [This Article Newly Inserted on Jan. 17, 2008]
| Article 290 (Effect of Public Prosecution) |
| (1) | A public prosecution shall not have effect on persons, other than the person designated by the military prosecutor, as a defendant. <Amended on Jan. 6, 2016> |
| (2) | A public prosecution instituted against part of a fact constituting a crime shall have effect on the whole. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 291 (Period of Prescription of Public Prosecution) |
| (1) | The prescription of public prosecution shall expire after the lapse of the following periods: <Amended on Jun. 9, 2020> |
| 1. | Offenses punishable by death penalty: 25 years; |
| 2. | Offenses punishable by imprisonment with or without labor for an indefinite term: 15 years; |
| 3. | Offenses punishable by imprisonment with or without labor for a maximum term of ten years or more: 10 years; |
| 4. | Offenses punishable by imprisonment with or without labor for a maximum term of less than ten years: Seven years; |
| 5. | Offenses punishable by imprisonment with or without labor for a maximum term of less than five years, suspension of qualifications for a maximum term of ten years or more, or a fine: Five years; |
| 6. | Offenses punishable by the suspension of qualifications for a maximum term of five years or more: Three years; |
| 7. | Offenses punishable by the suspension of qualifications for a maximum term of less than five years, misdemeanor imprisonment, minor fine or confiscation: One year. |
| (2) | The statute of limitations on an offense against which a public prosecution has been instituted shall be deemed to have expired after a lapse of 25 years from the time such public prosecution was instituted. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 292 (Two or More Sentences and Periods of Prescription) |
Article 291 shall apply to an offense, which is to be punished simultaneously by two or more sentences or by a sentence out of two or more sentences, according to the heavier one. [This Article Wholly Amended on Dec. 29, 2009]
| Article 293 (Aggravation and Mitigation of Sentences and Periods of Prescription) |
Where a sentence is aggravated or mitigated pursuant to the Criminal Act, Article 291 shall apply according to the sentence that has not been aggravated or mitigated. [This Article Wholly Amended on Dec. 29, 2009]
| Article 294 (Starting Point of Prescription of Public Prosecution) |
| (1) | The period of prescription shall commence from the time a criminal activity ends. |
| (2) | In cases of accomplices, the period of prescription shall commence for all the accomplices from the time a criminal activity is finally finished. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 295 (Suspension of Prescription of Public Prosecution and Effects thereof) |
| (1) | The progress of the period of prescription shall be suspended when a public prosecution is instituted, and commence from the time when judgment on the violation of jurisdiction or dismissal of public prosecution becomes final. |
| (2) | Suspension of the period of prescription prescribed in paragraph (1) for one of the accomplices shall have effect on all of the accomplices, and the period of prescription shall commence from the time when the judgment becomes final. |
| (3) | Where the offender stays abroad in order to escape criminal punishment, the period of prescription shall be suspended during such period. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 295-2 (Exclusion from Application of Prescription for Public Prosecution) |
The prescription for public prosecution prescribed in Articles 291 through 295 shall not apply to a crime of killing a person (excluding accessories) which is punishable with death penalty. [This Article Newly Inserted on Jan. 6, 2016]
| Article 296 (Methods of Instituting Public Prosecutions and Written Indictment) |
| (1) | When a public prosecution is instituted, a written indictment shall be submitted to the competent military court. |
| (2) | The duplicates of the written indictment shall be attached according to the number of defendants. |
| (3) | The written indictment shall contain the following matters: |
| 1. | Names of defendants and other matters by which defendants can be identified; |
| 3. | Facts constituting an offense subject to public prosecution; |
| 4. | Applicable provisions of law. |
| (4) | The facts constituting an offense subject to public prosecution shall be stated clearly by specifying the time, date, place and methods of crime so that such facts can be specified. |
| (5) | Several facts constituting a crime and several applicable provisions of law may be stated in the written indictment preparatorily, or one of the facts and provisions may be stated therein alternatively. |
| (6) | The written indictment shall not be accompanied by documents or other objects that are likely to make a military judicial officer open to prejudication, or the contents thereof shall not be cited. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 297 (Withdrawal of Public Prosecution) |
| (1) | A public prosecution may be withdrawn before judgment of the court of first instance is rendered. |
| (2) | The withdrawal of a public prosecution shall be made in writing stating reasons therefor: Provided, That where it is made inside a courtroom, it may be made verbally. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 298 (Handling of Cases Following Complaints, etc.) |
When a military prosecutor investigates a case following complaint or accusation, he/she shall finish investigation within three months from the date such complaint or accusation was received and determine whether to institute a public prosecution. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 299 (Notification of Disposition to Complainants) |
| (1) | Where a military prosecutor conducts a disposition to institute or not to institute a public prosecution on a complaint case or accusation case, withdraws a public prosecution, or transfers such case pursuant to subparagraph 3 of Article 285, he/she shall notify the complainant or accuser of the gist in writing within seven days from the date he/she conducted such disposition. <Amended on Jan. 6, 2016> |
| (2) | Where a military prosecutor does not institute a public prosecution or transfers a case pursuant to subparagraph 3 of Article 285, he/she shall immediately notify the suspect of the gist. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 300 (Explanation to Complainants of Reasons Public Prosecution not Instituted) |
Where a military prosecutor conducts a disposition not to institute a public prosecution on a case for which a complaint or accusation was received, he/she shall explain the reason in writing to the complainant or accuser within seven days if he/she receives a request from the complainant or accuser. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 300-2 (Notification to Victims, etc.) |
When the military prosecutor receives a request from the victim of crime or legal representative thereof (including spouse, lineal relatives and siblings thereof where such victim has died), he/she shall promptly notify such person of the facts, etc. concerning confinement, such as whether a public prosecution on the relevant case has been instituted, the time, date and venues of trial, results of judgment, detention or release of suspect and defendant, etc. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 301 (Application for Adjudication) |
| (1) | When a person who files a complaint or accusation is not satisfied with the disposition of the military prosecutor not to institute a public prosecution, he/she may apply for adjudication whether such disposition is appropriate to the High Military Court. <Amended on Jan. 6, 2016> |
| (2) | The application prescribed in paragraph (1) shall be submitted to the head of a unit to which the military prosecutor is posted within 30 days from the date a notice prescribed in Article 299 (1) is received. <Amended on Jan. 6, 2016; Jun. 9, 2020> |
| (3) | The application for adjudication shall state grounds that make application for adjudication reasonable, such as facts constituting an offense, evidence, etc. of a case subject to the application for adjudication. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 302 (Effect and Withdrawal of Application by Proxy or One Person) |
| (1) | An application for adjudication may be filed by proxy, and an application filed by one of the persons authorized to file an application shall have effect on all of them. |
| (2) | An application for adjudication may be withdrawn by the time a ruling prescribed in Article 304 (2) is made, and no person who has withdrawn an application shall re-apply for adjudication thereon. |
| (3) | The withdrawal under paragraph (2) shall not have effect on the rest of the persons authorized to file an application. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 303 (Handling by Head of a unit to which Military Prosecutor Is Posted) |
| (1) | The head of a unit, who has received an application for adjudication, to which the military prosecutor is attached shall hear the opinions of the military prosecutor and handle it as follows: <Amended on Jan. 6, 2016> |
| 1. | When he/she recognizes that such application has reasonable grounds: He/she shall immediately order to institute a public prosecution, and notify the gist to the High Military Court and the applicant for adjudication; |
| 2. | When he/she recognizes that such application lacks reasonable grounds: He/she shall transfer records of such application to the Minister of National Defense or the Chief of Staff of each service branch accompanied by his/her opinions within seven days. |
| (2) | The Minister of National Defense or the Chief of Staff of each service branch who has received records prescribed in paragraph (1) 2 shall hear the opinions of the military prosecutors of high prosecutors’ office, and handle such application as follows: <Amended on Jan. 6, 2016> |
| 1. | When he/she recognizes that such application has reasonable grounds: He/she shall transfer such records of application to the head of a unit to which the military prosecutor who has not instituted a public prosecution, together with a written order to institute a public prosecution, and notify the gist to the High Military Court and the applicant for adjudication; |
| 2. | When he/she recognizes that such application lacks reasonable grounds: He/she shall transfer such records of application to the High Military Court within 30 days. |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 304 (Trial and Ruling) |
| (1) | When the High Military Court receives an application for adjudication, it shall notify the suspect of such fact within ten days. |
| (2) | The High Military Court shall render a ruling according to the following classifications, corresponding to the procedures for appeal within three months from the date such application for adjudication was received. In such cases, the High Military Court may examine evidence, if necessary: |
| 1. | When such application lacks legal form or grounds: The High Military Court shall dismiss such application; |
| 2. | When such application is reasonable: The High Military Court shall render a ruling to institute a public prosecution on the relevant case. |
| (3) | The trial of a case of application for adjudication shall not be open to the public unless any special circumstance exists. |
| (4) | An immediate complaint under Article 464 may be raised against a ruling under subparagraph 1 of paragraph (2), and no objection shall be raised against a ruling under subparagraph 2 of paragraph (2). A case for which a ruling under paragraph (2) 1 becomes final and decisive may not be subject to public prosecution, except where any other important evidence is discovered later. <Amended on Jan. 6, 2016> |
| (5) | When the High Military Court has rendered a ruling prescribed in paragraph (2), it shall immediately send the original copy thereof to the applicant for adjudication, the suspect and the head of a unit to which the relevant military prosecutor is attached. In such cases, when the High Military Court has rendered a ruling prescribed in paragraph (2) 2, it shall also send the records of the case to the head of a unit to which the relevant military prosecutor is attached. <Amended on Jan. 6, 2016> |
| (6) | The head of a unit to which the relevant military prosecutor is attached who has received a ruling for adjudication prescribed in paragraph (2) 2 shall designate a military prosecutor to be in charge of such case without delay, and the designated military prosecutor shall institute a public prosecution. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 305 (Suspension, etc. of Statute of Limitations) |
| (1) | When an application for adjudication prescribed in Article 301 is filed, the progress of statute of limitations shall be suspended until a ruling prescribed in Article 304 is finally confirmed. <Amended on Jan. 6, 2016> |
| (2) | When a ruling prescribed in Article 304 (2) 2 has been rendered, a public prosecution shall be deemed to have been instituted on the date such ruling was rendered concerning the statute of limitations. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 306 (Restrictions on Revocation of Public Prosecution) |
Where a military prosecutor has instituted a public prosecution in accordance with a ruling prescribed in Article 304 (2) 2, he/she shall not revoke such public prosecution. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
[Moved from Article 306-2; Previous Article 306 Deleted]
| Article 306-2 (Restrictions on Perusal or Duplication of Records of Application for Adjudication) |
No one shall be allowed to peruse or duplicate relevant documents or articles of evidence while an application for adjudication is being tried: Provided, That in cases of documents prepared in the course of examination of evidence prescribed in the latter part of Article 304 (2) other than each subparagraph, the High Military Court may permit the perusal or duplication of all or part of such documents. [This Article Wholly Amended on Dec. 29, 2009]
[Moved from Article 307-2; Previous Article 306-2 moved to Article 306 <Jan. 29, 2009>]
| Article 306-3 (Bearing Expenses, etc.) |
| (1) | Where a ruling prescribed in Article 304 (2) 1 or withdrawal prescribed in Article 302 (2) exists, the High Military Court may have the applicant for adjudication fully or partially bear expenses incurred according to the procedures for application by its ruling. |
| (2) | The High Military Court may order the applicant for adjudication to fully or partially pay the expenses, such as fees for legal counsel, etc. that a suspect has borne or is to bear ex officio or on the application of suspect. |
| (3) | An immediate appeal may be filed against the ruling prescribed in paragraphs (1) and (2). |
| (4) | The extent of expenses prescribed in paragraphs (1) and (2) to be paid, procedures therefor, etc. shall be determined by the Supreme Court Regulations. |
[This Article Wholly Amended on Dec. 29, 2009]
[Moved from Article 307-3 <Dec. 29, 2009>]
| Article 307 (Perusal or Duplication of Documents and articles of evidence by Military Prosecutors) |
The military prosecutor may peruse or duplicate documents and evidence concerning public prosecution after he/she has instituted a pubic prosecution. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
[Previous Article 307-2 moved to Article 306-2 <Dec. 29, 2009>]
[Previous Article 307-3 moved to Article 306-3 <Dec. 29, 2009>]
Subsection 1 Preparation and Procedures for Public Trials
| Article 308 (Service of Copy of Bill of Indictment) |
When a public prosecution has been instituted, the military court shall serve a copy of written indictment on the defendant and the defense attorney by no later than five days before the court date of the first public trial.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309 (Notification concerning Appointment of Defense Attorney) |
When a public prosecution has been instituted, the military judge shall, without delay, notify the defendant of the purport that he/she can appoint a defense attorney and the purport that the military court shall appoint a defense attorney if he/she does not appoint a defense attorney: Provided, That where the defendant has a defense attorney, this shall not apply.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-2 (Submission of Written Opinions) |
| (1) | A defendant or defense attorney shall submit a written opinion stating whether he/she admits the facts constituting an offense subject to public prosecution, opinions on the procedures for preparatory procedures for trial, etc. to the military court within seven days from the date a copy of bill of indictment was served on him/her: Provided, That the defendant refuses to make a statement, a written opinion stating such purport may be submitted. |
| (2) | When the military court has received a written opinion prescribed in paragraph (1), it shall send it to the military prosecutor. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-3 (Perusal or Duplication of Documents, etc. Kept by Military Prosecutors after Public Prosecution Is Instituted) |
| (1) | The defendant or defense attorney may file an application with the military prosecutor for the perusal or duplication of the list of documents or objects (hereinafter referred to as "documents, etc.") concerning the case for which a public prosecution has been instituted, and for the perusal or duplication of the following documents, etc. that are likely to affect the admission of the facts constituting an offense subject to public prosecution or the sentencing, or for the issuance of papers: Provided, That where the defendant has a defense attorney, the defendant may file an application for perusal only: <Amended on Jan. 6, 2016> |
| 1. | Documents that the military prosecutor is going to request as evidence; |
| 2. | Papers stating the names of persons that the military prosecutor is going to request as a witness, relationship with the case, etc., or documents, etc. describing the statements made by such persons before the court date; |
| 3. | Documents relating to the probative power of the papers, documents, etc. prescribed in subparagraph 1 or 2; |
| 4. | Documents, etc. (including records of related criminal trials for which judgment is finally closed, records of disposition not to institute a public prosecution, etc.) relating to arguments made by defendant or defense attorney on matters of law and facts. |
| (2) | If the military prosecutor recognizes that there are reasonable grounds such as national security, necessity to protect witnesses, concern of destruction of evidence, specific grounds expected to obstruct an investigation into related cases, etc., he/she may refuse perusal or duplication of documents or issuance of papers, or restrict the extent thereof. <Amended on Jan. 6, 2016> |
| (3) | When the military prosecutor refuses the perusal or duplication of document or the issuance of papers, or restrict the extent thereof, he/she shall, without delay, notify the reason in writing. <Amended on Jan. 6, 2016> |
| (4) | If the military prosecutor fails to notify the defendant or defense attorney pursuant to paragraph (3) within 48 hours from the time he/she received an application prescribed in paragraph (1), the defendant or defense attorney may file an application prescribed in Article 309-4 (1). <Amended on Jan. 6, 2016> |
| (5) | Notwithstanding paragraph (2), the military prosecutor shall not be permitted to refuse the perusal or duplication of the list of documents, etc. <Amended on Jan. 6, 2016> |
| (6) | Documents, etc. shall include drawings, photographs, audio tapes, video tapes, computer discs, and special media, which are not documents, but manufactured to store information. In such cases, the duplication of such special media shall be limited to the necessary minimum. |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 309-4 (Military Court Ruling on Perusal, Duplication, etc.) |
| (1) | When the military prosecutor has refused to allow a defendant to peruse and duplicate documents, etc. or has refused to issue papers, or has placed a limitation thereon, the defendant or defense attorney may file an application to the military court to allow the perusal or duplication of documents, etc. or the issuance of papers. <Amended on Jan. 6, 2016> |
| (2) | When the military court receives an application prescribed in paragraph (1), it may order the military prosecutor to allow the perusal or duplication of documents, etc. or the issuance of papers in consideration of the type and degree of issues that may occur where the perusal or duplication of documents, etc. or the issuance of papers is allowed, necessity for the defense of defendant or speedy proceedings of trial, importance of the relevant documents, etc. In such cases, the military court may designate the time and methods of perusal or duplication, or put conditions or obligations thereon. <Amended on Jan. 6, 2016> |
| (3) | When the military court renders a ruling prescribed in paragraph (2), it shall provide the military prosecutor with an opportunity to present his/her opinions. <Amended on Jan. 6, 2016> |
| (4) | When the military court recognizes it necessary, it may request the military prosecutor to present relevant documents, etc., and interrogate the defendant or other interested parties. <Amended on Jan. 6, 2016> |
| (5) | Unless the military prosecutor implements the military court ruling concerning the perusal or duplication of documents, etc. or the issuance of papers prescribed in paragraph (2) without delay, he/she shall not be permitted to file an application for examination of the relevant witnesses, documents, etc. as evidence. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-5 (Preparatory Proceedings Prior to Trial) |
| (1) | The residing judge may put a case to preparatory proceedings for efficient and concentrated trial. |
| (2) | The preparatory proceedings prior to trial shall go on by preparing written plans to assert and prove, or by holding a preparatory hearing for trial. |
| (3) | The military prosecutor, defendant or defense attorney shall cooperate with each other so that preparatory proceedings prior to trial, such as collecting and arranging evidence, etc., can progress smoothly. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-6 (Submission of Papers for Preparation of Trial) |
| (1) | A military prosecutor, defendant or defense attorney may submit papers describing the outlines of their arguments on matters of law and fact, the gist of evidence, etc. to the military court. <Amended on Jan. 6, 2016> |
| (2) | The presiding judge may order the military prosecutor, defendant or defense attorney to submit papers prescribed in paragraph (1). <Amended on Jan. 6, 2016> |
| (3) | Where papers have been submitted pursuant to paragraph (1) or (2), the military court shall serve a duplicate thereof on the other party. |
| (4) | The presiding judge may request the military prosecutor, defendant or defense attorney to give an explanation of the submitted papers, or issue orders necessary for the preparation of trial. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-7 (Preparatory Hearing Day) |
| (1) | The military court may designate a preparatory hearing date after hearing the opinions of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016> |
| (2) | A military prosecutor, defendant or defense attorney may request the military court to designate a preparatory hearing date. In such cases, no party may raise an objection against the military court ruling on such request. <Amended on Jan. 6, 2016> |
| (3) | The military court may have a judge of the collegiate division to preside over a preparatory hearing. In such cases, the assigned judge shall have the same authority as the military court or presiding judge concerning the preparatory hearing. |
| (4) | The preparatory hearing shall be open to the public: Provided, That where the proceedings of hearing are likely to be obstructed if opened to the public, the preparatory hearing may not be permitted to be open to the public. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-8 (Attendance of Military Prosecutors, Defense Attorneys, etc.) |
| (1) | The military prosecutor and defense attorney shall attend the preparatory hearings. <Amended on Jan. 6, 2016> |
| (2) | Military court clerks shall attend the preparatory hearings. |
| (3) | The military court shall notify the military prosecutor, defendant and defense attorney of the preparatory hearing date. <Amended on Jan. 6, 2016> |
| (4) | If no defense attorney is appointed for a case for which a preparatory hearing date was designated, the military court shall designate a defense attorney ex officio. |
| (5) | If recognized as necessary, the military court may summon the defendant, and the defendant may attend the preparatory hearings even when the military court does not summon him/her. |
| (6) | The presiding judge shall inform the attending defendant that he/she may refuse to make a statement. |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 309-9 (Matters concerning Preparatory Hearing) |
| (1) | The military court may perform the following acts in the preparatory proceedings: |
| 1. | Clarifying the facts constituting an offense subject to public prosecution or applicable provisions of law; |
| 2. | Permitting to add, withdraw or modify facts constituting an offense subject to public prosecution or applicable provisions of law; |
| 3. | Clarifying arguments concerning facts constituting an offense subject to public prosecution to organize the issues of the case; |
| 4. | Requesting explanation on the contents that include difficult calculation or complexity; |
| 5. | Requesting to apply for examination as evidence; |
| 6. | Clarifying the gist and substance of evidence concerning evidence for which an application for examination as evidence has been filed; |
| 7. | Confirming opinions on the application for examination as evidence; |
| 8. | Rendering a ruling on admissibility of evidence; |
| 9. | Determining the order or method of examining evidence; |
| 10. | Rendering a ruling on whether an application filed is appropriate in connection with the perusal or duplication of documents, etc.; |
| 11. | Designating or changing the court date; |
| 12. | Determining other matters necessary for the proceedings of trial. |
| (2) | Article 350 shall apply mutatis mutandis to the preparatory proceedings. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-10 (Confirmation of Results of Preparatory Hearings) |
| (1) | When the military court closes the preparatory hearing, it shall notify the military prosecutor, defendant or defense attorney of the arranged results of issues and evidence, and confirm whether he/she has an objection. <Amended on Jan. 6, 2016> |
| (2) | The military court shall record arranged results of issues and evidence in the protocol of preparatory hearing. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-11 (Perusal, Duplication, etc. of Documents, etc. Kept by Defendant or Defense Attorney) |
| (1) | If a defendant or defense attorney makes an assertion concerning a matter of law or fact in a trial or preparatory hearing, such as non-existence at the scene, insanity or mental or physical retardation, the military prosecutor may request the defendant or defense attorney to allow him/her to peruse or duplicate the following documents, etc., or to submit papers therein: <Amended on Jan. 6, 2016> |
| 1. | Documents, etc. that the defendant or defense attorney intends to file an application to admit as evidence; |
| 2. | Papers stating the name of the person whom the defendant or defense attorney intends to file an application as a witness, his/her relationship with the case, etc.; |
| 3. | Documents, etc. relating to the probative weight of the documents, etc. in subparagraph 1 or papers in subparagraph 2; |
| 4. | Documents, etc. relating to the assertion of the defendant or defense attorney in connection with a matter of law or fact. |
| (2) | If the military prosecutor refuses to allow a defendant or defense attorney to peruse or duplicate documents, etc. or to issue papers, etc. prescribed in Article 309-3 (1), the defendant or defense attorney may also refuse the perusal or duplication of documents, etc. or the issuance of papers, etc. prescribed in paragraph (1): Provided, That where the military court has rendered a ruling of dismissing an application prescribed in Article 309-4 (1), this shall not apply. <Amended on Jan. 6, 2016> |
| (3) | If the defendant or defense attorney refuses a request prescribed in paragraph (1), the military prosecutor may file an application to allow him/her to peruse or duplicate documents, etc. or to submit such papers. <Amended on Jan. 6, 2016> |
| (4) | Article 309-4 (2) through (5) shall apply mutatis mutandis to an application prescribed in paragraph (3). |
| (5) | Article 309-3 (6) shall apply mutatis mutandis to documents, etc. prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-12 (Reasons for Closing Preparatory Proceedings) |
Where any of the following reasons exists, the military court shall close preparatory proceedings: Provided, That in cases under subparagraph 2 or 3, where sufficient reasons to continue preparatory proceedings exist, this shall not apply: <Amended on Jan. 6, 2016>
| 1. | When issues and evidence have been completely organized; |
| 2. | When three months pass after the case was put to preparatory proceedings; |
| 3. | When the military prosecutor, defense attorney or summoned defendant did not appear. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-13 (Effect of Closing of Preparatory Proceedings) |
| (1) | An application for evidence for which an application has not been filed during preparatory proceedings may be filed on the court date only in any of the following cases: |
| 1. | When such application does not significantly delay proceedings; |
| 2. | When unavoidable reasons, such as that the evidence has not been submitted on the court date without gross negligence on his/her part, have been vindicated, etc. |
| (2) | Notwithstanding paragraph (1), the military court may examine evidence ex officio. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-14 (Provisions to be Applied mutatis mutandis) |
Article 356 shall apply mutatis mutandis to the resumption of preparatory proceedings. [This Article Wholly Amended on Dec. 29, 2009]
| Article 309-15 (Preparatory Proceedings between Court Dates) |
If necessary to organize issues and evidence, the military court may put a case to preparatory proceedings even after the first court date. In such cases, provisions concerning preparatory proceedings prior to the court date shall apply mutatis mutandis.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 309-16 (Prohibition of Abuse of Perused or Duplicated Documents, etc.) |
| (1) | The defendant or defense attorney (including a person who was a defendant or defense attorney; hereinafter the same shall apply in this Article) shall not deliver or present (including provision through electric telecommunications facilities) a copy of a statement or documents, which the military prosecutor allowed him/her to inspect or duplicate, to other persons for a purpose other than the purpose of use for the preparation of the relevant case or related litigation. <Amended on Jan. 6, 2016> |
| (2) | A defendant or defense attorney who violates paragraph (1) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won. <Amended on Jan. 7, 2014> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 310 (Designation of Court Date) |
| (1) | The presiding judge shall fix a court date. |
| (2) | The defendant or proxy shall be summoned on the court date. |
| (3) | The military prosecutor, defense attorney and assistants shall be notified of the court date. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 310-2 (Intensive Trial) |
| (1) | A trial on a court date shall be conducted intensively. |
| (2) | Where two or more days are necessary for trial, the court shall be open every day unless any unavoidable circumstance exists. |
| (3) | The presiding judge may designate several court dates en bloc. |
| (4) | Even when the presiding judge cannot consecutively open the court every day due to unavoidable reasons, he/she shall designate a day within 14 days from the previous court date as the next court date unless extenuating circumstances exist. |
| (5) | Persons involved in the litigation shall appear on the court date and endeavor not to cause any inconvenience to the trial, and the presiding judge shall take measures necessary therefor. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 311 (Deeming Writ of Summons to Have Been Served) |
When a defendant within the precinct of a military court is notified of a court date, a writ of summons shall be deemed to have been served on him/her.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 312 (First Court Date and Period of Delay) |
| (1) | The first court date shall be fixed with a delay of at least five days after a writ of summons is served. |
| (2) | If the defendant raises no objection, it shall be permitted not to have a period of delay prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 313 (Change of Court Date) |
| (1) | The presiding judge may change the court date ex officio or at the request of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016> |
| (2) | Where the court date is changed ex officio, opinions shall be gathered from the military prosecutor, defendant or defense attorney; where it is changed at the request of the military prosecutor, defendant or defense attorney, opinions shall be gathered from the other party or defense attorney: Provided, That where it needs to be changed urgently, this shall not apply. <Amended on Jan. 6, 2016> |
| (3) | An order dismissing a request for the change of court date shall not be served. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 314 (Nonattendance and Submission of Data) |
When a person who has been summoned or has received a notice fails to appear before the court on the court date due to illness or other reasons, he/she shall submit a written diagnosis from a physician or other data.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 315 (Inquiry to Public Offices, etc.) |
| (1) | The military court may inquire of government offices, public organizations or private organizations ex officio or at the request of a military prosecutor, defendant or defense attorney, and request them to report necessary matters or to send documents being kept. <Amended on Jan. 6, 2016> |
| (2) | A request under paragraph (1) shall be dismissed by ruling. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 316 (Examination of Evidence before Court Date) |
| (1) | If the military court recognizes it necessary for preparatory proceedings at the request of a military prosecutor, defendant or defense attorney, it may examine the defendant or witness, or examine evidence, or order to give an expert evidence or to make a translation before the court date. <Amended on Jan. 6, 2016> |
| (2) | The military court may have a military judge conduct acts prescribed in paragraph (1). |
| (3) | A request under paragraph (1) shall be dismissed by ruling. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 316-2 (Submission of Evidence by Party before Court Date) |
A military prosecutor, defendant or defense attorney may submit document or articles as evidence to the military court before the date fixed for trial.
[This Article Newly Inserted on Jun. 9, 2020]
| Article 317 Deleted. <Jan. 17, 2008> |
| Article 318 Deleted. <Jan. 17, 2008> |
| Article 319 Deleted. <Jan. 17, 2008> |
| Article 320 Deleted. <Jan. 17, 2008> |
| Article 321 Deleted. <Jan. 17, 2008> |
| Article 322 (Trial in Courtroom) |
| (1) | A trial on a court date shall be conducted in a courtroom. |
| (2) | Courtroom shall open with the attendance of military judicial officers, a military prosecutor, a defense attorney and a clerk. <Amended on Jan. 6, 2016> |
| (3) | The seat of a military prosecutor shall be on the same level as that of the defendant and the defense attorney facing one another on either side of the court platform, and the witness booth shall be in front of the court platform: Provided, That where a defendant is examined, he/she shall sit in the seat of a witness. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 323 (Presumed Innocence of Defendant) |
A defendant shall be presumed innocent until conclusively judged guilty.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 323-2 (Principle of Oral Pleading) |
Pleadings in courtroom shall be made orally.
[This Article Newly Inserted on Jan. 17, 2008]
| Article 324 (Right to Lead Proceedings of Presiding Judge) |
The presiding judge shall lead proceedings on the court date.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 325 (Cases, etc. of Misdemeanor and Nonattendance of Defendant) |
A defendant need not attend the military court for any of the following cases. In such cases, the defendant may have a proxy attend the military court:
| 1. | Cases subject to a maximum fine not exceeding five million won or minor fine; |
| 2. | Cases, the public prosecution of which shall surely be dismissed or the judgment of acquittal of which shall surely be given; |
| 3. | Cases subject to imprisonment with or without labor for a maximum term of three years or less, a maximum fine exceeding five million won or misdemeanor imprisonment, which the military court has permitted a defendant nonattendance because the defendant has made a request for nonattendance and the military court recognized hat the nonattendance of defendant would not cause any problem to the protection of his/her right: Provided, That in cases of a court date proceedings prescribed in Article 329 is underway or on which judgment is passed, he/she shall attend the military court on the court date; |
| 4. | Cases for which judgment is passed following a request for formal trial only by the defendant pursuant to Article 501-7. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 325-2 (Refusal of Defendant to attend Military Court and Trial Proceedings) |
| (1) | Where the detained defendant refuses to appear in the military court without reasonable grounds and it is recognized that bringing him/her to the military court by prison officers is impossible or significantly difficult when the military court does not open if the defendant fails to appear, the trial may proceed without the attendance of the defendant. |
| (2) | Where a trial is to be proceeded pursuant to paragraph (1), the opinions of the military prosecutor or defense attorney present shall be heard. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 326 (Appearance of Defendants and Opening of Court) |
Except for cases prescribed in Article 325, the court shall not open if the defendant does not appear on the court date. [This Article Wholly Amended on Dec. 29, 2009]
| Article 326-2 (Special Rules for Persons Needing Special Protection, such as Disabled Persons) |
| (1) | In any of the following cases, when the presiding judge or military judicial officer examines a defendant, he/she may permit a person in a dependant relationship with the defendant to sit beside the defendant ex officio or at the request of the defendant, legal representative or military prosecutor: <Amended on Jan. 6, 2016> |
| 1. | Where the defendant is incompetent to discern right and wrong, or lacks sufficient mental capacity to make a decision and convey intentions due to mental or physical disorder; |
| 2. | When it is necessary for the mental stability and smooth communication in consideration of the age, sex, nationality, etc. of the defendant. |
| (2) | The extent of persons in the dependant relationship eligible to sit beside the defendant pursuant to paragraph (1), procedures for sitting together, methods thereof, etc. shall be prescribed by the Supreme Court Regulations. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 326-3 (Absence of Military Prosecutors) |
If a military prosecutor is notified of the date fixed for trial twice or more and fails to appear, or where only judgment is pronounced, the military court may proceed without appearance of the military prosecutor.
[This Article Newly Inserted on Jun. 9, 2020]
| Article 327 (Prohibition on Restraining Defendants in Courtrooms) |
| (1) | A defendant shall not be restrained in the courtroom: Provided, That where a defendant intends to commit an act of violence or flee, this shall not apply. |
| (2) | Even when a defendant is not restrained, he/she may be placed under guard. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 328 (Duty of Defendant to Remain in Court and Military Court Police Power) |
| (1) | A defendant shall not leave the military court without the permission of the presiding judge. |
| (2) | In order to prevent defendants from leaving the military court or to maintain order in the military court, the presiding judge may conduct necessary disposition. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 328-2 (Defendant’s Right, etc. to Silence) |
| (1) | A defendant has a right to remain silent or refuse to answer respective questions. |
| (2) | The presiding judge shall inform a defendant that he/she has a right to refuse to comment pursuant to paragraph (1), and of other matters necessary for the protection of the defendant’s right, and give the defendant or defense attorney an opportunity to make a statement of facts favorable to him/her. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 329 (Questioning Identity) |
The presiding judge shall ask the name, age, place of registration, dwelling, occupation, post, rank, etc, of a defendant in order to confirm whether he/she is exactly the defendant.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 330 (Opening Statement of Military Prosecutor) |
The military prosecutor shall read aloud the facts constituting an offense subject to public prosecution, name of charged crime, applicable provisions of law according to the written prosecution: Provided, That where the presiding judge recognizes it necessary, he/she may have the military prosecutor read aloud the gist of public prosecution. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 331 (Opening Statement of Defendant) |
| (1) | A defendant shall make a statement on whether he/she admits the facts constituting an offense subject to public prosecution after the military prosecutor concludes his/her opening statement: Provided, That where the defendant exercises his/her right to silence, this shall not apply. <Amended on Jan. 6, 2016> |
| (2) | The defendant and the defense attorney may make a statement of facts, etc. favorable to themselves. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 332 (Presiding Judge’s Organizing of Issues and Statements by Military Prosecutor and Defense Attorney concerning Evidence, etc.) |
| (1) | After the defendant finishes his/her opening statement, the presiding judge may ask the defendant or defense attorney questions necessary to organize issues. |
| (2) | Before beginning to examine evidence, the presiding judge may allow the military prosecutor and defense attorney to make a statement concerning arguments relating to the verification of facts, etc. constituting an offense subject to public prosecution, plans, etc. to prove them: Provided, That in cases of matters that are likely to cause to form a presupposition and prejudice of the case to the judge, the military prosecutor and defense attorney shall not be allowed to make a statement about matters that are likely to inform the military court a presupposition and prejudice of the case, based on the data that are inadmissible as evidence or the military prosecutor or defense attorney has no intention to produce as evidence. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 333 Deleted. <Jan. 17, 2008> |
| Article 334 (Examination of Evidence) |
Evidence shall be examined after the proceedings prescribed in Article 332 are completed. [This Article Wholly Amended on Dec. 29, 2009]
| Article 335 (Presentation of Matters Requiring Proof by Military Prosecutor) |
Upon examination of evidence, the military prosecutor shall clarify matters requiring proof according to evidence; Provided, That the military prosecutor shall not be allowed to make a statement about materials that are likely to inform the judge a presupposition and prejudice of the case, by which it is impractical to make a request for examination of evidence or the military prosecutor has no intention to produce as evidence. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 336 (Presentation of Matters Requiring Proof by Defendant’s Side) |
| (1) | After the military prosecutor completes his/her opening statement, the defendant or defense attorney may clarify matters requiring proof according to evidence. <Amended on Jan. 6, 2016> |
| (2) | The proviso to Article 335 shall apply mutatis mutandis to the statement prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 337 (Interested Parties’ Application for Examination as Evidence) |
| (1) | The military prosecutor, defendant or defense attorney may produce documents or objects as evidence, and file an application for the examination of a witness, expert witness, interpreter or translator. <Amended on Jan. 6, 2016> |
| (2) | If the military court recognizes that the completion of a public trial is delayed because the military prosecutor, defendant or defense attorney belatedly files an application for the examination of documents or objects as evidence deliberately, it may dismiss such application ex officio or at the request of the other party by ruling. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 338 (Right of Victim, etc. to Make Statements) |
| (1) | When the military court has received a request from the victim of a crime or his/her legal representative (including spouse, lineal relatives and siblings where such victim dies; hereafter referred to as "victim, etc." in this Article), it shall examine such victim as a witness: Provided, That this shall not apply to any of the following cases: |
| 1. | Where it is recognized that the victim has made sufficient statements in the trial proceedings concerning relevant case, thus no further statement is necessary; |
| 2. | Where the trial proceedings are likely to be delayed due to the statements of victim, etc. |
| (2) | Where the military court examines a witness, etc. pursuant to paragraph (1), it shall give the victim an opportunity to make a statement on the degree and results of damage, opinions on the punishment of the defendant and other matters relating to the relevant case. |
| (3) | Where several requesters prescribed in paragraph (1) concerning the same facts constituting an offense exist, the military court may limit the number of persons to make a statement. |
| (4) | Where a requester prescribed in paragraph (1) fails to appear before the military court after being summoned without any justifiable reasons, he/she shall be deemed to have withdrawn such request. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 338-2 (Non-Disclosure of Victims’ Statements) |
| (1) | Where the military court examines the victim of crime as a witness, it shall be allowed not to open the trial to the public at the request of the defendant, legal representative or military prosecutor by ruling if it recognizes that needs for the protection of personal confidential information or for personal protection exist. <Amended on Jan. 6, 2016> |
| (2) | The ruling prescribed in paragraph (1) shall be notified with reasons therefor. |
| (3) | Even after the military court renders a ruling prescribed in paragraph (1), it may permit persons recognized as appropriate to attend the military court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 338-3 (Perusal or Duplication of Litigation Records by Victims, etc.) |
| (1) | The victim (including spouse, lineal relatives and siblings where the victim dies or has a serous mental or physical disorder) of a pending case, legal representative of the victim or the spouse, lineal relatives, siblings or defense attorney who has been delegated by the aforementioned persons may request the perusal or duplication of court records to the presiding judge. |
| (2) | When the presiding judge receives a request prescribed in paragraph (1), he/she shall notify the military prosecutor, defendant or defense attorney of the gist thereof without delay. <Amended on Jan. 6, 2016> |
| (3) | Where it is recognized to be necessary for legal remedies for victims, etc., or other justifiable reasons exist, the presiding judge may permit perusal or duplication if he/she recognizes it reasonable in consideration of the nature of crime, situation of hearing and other circumstances. |
| (4) | Where the presiding judge permits duplication pursuant to paragraph (3), he/she may limit the use of duplicated court records or attach conditions recognized as appropriate. |
| (5) | No person who has perused or duplicated court records pursuant to paragraph (1) shall unjustly injure relevant persons’ honor or peace of life, or cause obstruction to the investigation and trial. |
| (6) | No appeal shall be lodged against the trials prescribed in paragraphs (3) and (4). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 339 (Order of Request for Examination of Evidence) |
| (1) | The military prosecutor shall, before anything else, request examination of all the evidence recognized as necessary for the trial of the case. <Amended on Jan. 6, 2016> |
| (2) | After the request prescribed in paragraph (1) is finished, the defendant and defense attorney may request the examination of evidence recognized as necessary for the trial of the case. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 340 (Method of Requesting Examination of Evidence) |
| (1) | When the examination of evidence is requested, the relationship between evidence and facts to prove shall be clarified in detail. |
| (2) | Where documents are evidence, the part to be examined specifically shall be clearly marked when examination is requested. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 341 (Method of Requesting Examination of Evidence) |
When the military prosecutor, defendant or defense attorney requests the examination of articles of evidence or documents for evidence, he/she shall, in advance, give the other party an opportunity to persue them: Provided, That where the other party has no objection, this shall not apply. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 342 (Confession and Restrictions on Request for Examination of Evidence) |
When another evidence concerning facts constituting a crime has not been examined, the examination of documents of which contents are the confession of a defendant shall not be requested.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 343 (Ruling of Examination of Evidence) |
The ruling of examination of evidence or dismissal of request for examination of evidence shall be determined by the military judge after hearing the opinions of the other party or his/her defense attorney.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 344 (Examination of Evidence ex officio) |
| (1) | When the military court deems necessary, it may examine evidence ex officio. |
| (2) | When the military court determines to examine evidence pursuant to paragraph (1), it shall hear the opinions of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 345 (Order of Examination of Evidence) |
| (1) | Evidence produced by the defendant or defense attorney shall be examined after the evidence produced by the military prosecutor is examined. <Amended on Jan. 6, 2016> |
| (2) | After the examination of evidence prescribed in paragraph (1) is finished, the military court may examine evidence recognized as necessary. |
| (3) | The military court may change the order of paragraphs (1) and (2) ex officio or at the request of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 346 (Results of Preparatory Proceedings and Needs for Examination of Evidence) |
The military court shall examine documents in which the results of examination, examination of evidence, expert evidence, translation, search or seizure conducted on a defendant or a person other than the defendant at the preparatory proceedings, and examine the documents and seized articles delivered pursuant to Article 315 (1) as documents or articles of evidence admitted as evidence in the courtroom. [This Article Wholly Amended on Dec. 29, 2009]
| Article 347 (Methods of Examining Evidential Documents) |
| (1) | When evidential documents are examined at the request of the military prosecutor, defendant or defense attorney, the requester shall read aloud the evidential documents. <Amended on Jan. 6, 2016> |
| (2) | When the military court examines evidential documents ex officio, the holder or presiding judge shall read aloud the evidential documents. |
| (3) | When the defendant makes a request, the presiding judge may allow him/her to peruse or duplicate evidential documents, or have a clerk read aloud the evidential documents. |
| (4) | When the presiding judge recognizes it necessary, notwithstanding paragraphs (1) and (2), he/she may examine the evidential documents by notifying the contents thereof. |
| (5) | The presiding judge may have a clerk read aloud or notify the evidential documents pursuant to paragraphs (1) and (4). |
| (6) | If the presiding judge recognizes that the perusal of evidential documents is the most appropriate method, he/she may conduct examination by presenting evidential documents for perusal. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 348 (Methods of Examining Articles of Evidence) |
| (1) | When articles of evidence are examined at the request of the military prosecutor, defendant or defense attorney, the requester shall present articles of evidence. <Amended on Jan. 6, 2016> |
| (2) | When the military court examines articles of evidence ex officio, the holder or presiding judge shall present articles of evidence. |
| (3) | The presiding judge may have a clerk present articles of evidence pursuant to paragraphs (1) and (2). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 348-2 (Methods of Examining other Evidence) |
Matters necessary for the examination of evidence other than documents, such as drawings, photographs, audio tapes, video tapes, computer discs and other materials made to store information shall be prescribed by the Supreme Court Regulations.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 348-3 (Result of Examination of Evidence and Opinion of Defendant) |
The presiding judge shall ask the defendant for his/her opinion about the examination of evidence and shall inform him/her that he/she is able to apply for necessary examination of evidence for the protection of his/her rights.
[This Article Newly Inserted on Jun. 9, 2020]
| Article 349 (Right to Challenge Probative Value) |
The military judge shall give the military prosecutor, defendant or defense attorney an appropriate opportunity deemed necessary to challenge the probative value by requesting the examination of counterevidence or by other methods. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 350 (Reasons for Filing Objections) |
| (1) | The military prosecutor, defendant or defense attorney may file an objection against the examination of evidence for reasons of violations of statutes or unreasonableness: Provided, That in cases of a ruling on the examination of evidence, no objection shall be filed on the grounds of unreasonableness. <Amended on Jan. 6, 2016> |
| (2) | The military prosecutor, defendant or defense attorney may file an objection against the disposition of the presiding judge or military judge on the grounds of violations of statutes in cases other than those under paragraph (1). <Amended on Jan. 6, 2016> |
| (3) | The military court shall render a ruling on the objection filed pursuant to paragraphs (1) and (2). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 351 (Submission of Evidence) |
The documents or articles of evidence admitted as evidence of which the examination of evidence has been finished shall be submitted to the military court without delay: Provided, That where permission has been obtained from the military court, certified copies thereof may be submitted.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 351-2 (Examination of Defendants) |
| (1) | The military prosecutor or defense attorney may examine one defendant after another on necessary matters concerning facts constituting an offense subject to public prosecution and circumstances after the examination of evidence is completed; Provided, That in cases the presiding judge recognizes it necessary, he/she may permit examination even before the examination of evidence is completed. <Amended on Jan. 6, 2016> |
| (2) | If the presiding judge recognizes it necessary, he/she may examine the defendant. |
| (3) | Article 202 (1) through (3) and (5) shall apply mutatis mutandis to the examination prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 352 (Ordering Defendants, etc. to Leave Courtroom.) |
| (1) | If the presiding judge recognizes that the defendant, witness, expert witness or translator is unable to make an adequate statement in the presence of a specific person among the audience, he/she may have such person leave the courtroom ex officio or at the request of the military prosecutor, defendant or defense attorney, and have such defendant, witness, expert witness or translator make a statement. <Amended on Jan. 6, 2016> |
| (2) | If the presiding judge recognizes that a defendant is unable to make an appropriate statement in the presence of another defendant or that a witness is unable to make an appropriate statement in the presence of the defendant, he/she may have such person make a statement after having such defendant leave the courtroom ex officio or at the request of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016> |
| (3) | Where a defendant was made to leave the courtroom pursuant to paragraph (2), the presiding judge shall have such defendant enter the courtroom after another defendant has finished statement, and have a clerk notify the gist of the statement to such defendant or witness. In such cases, such defendant may examine the witness or another defendant after obtaining the leave of the presiding judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 353 (Restrictions on Unnecessary Examinations and Statements) |
Where the examinations or statements of litigants are overlapping, unrelated with the case or are inappropriate, the presiding judge or military judge may place restrictions thereon insofar as such restrictions do not violate the essential rights of the persons involved in the litigation.
[This Article Wholly Amended on Dec. 29, 2009]
| (1) | After the examination of a defendant and examination of evidence are finished, the military prosecutor shall make a statement on facts and the application of laws: Provided, That in cases falling under Article 326-3, the military prosecutor shall be deemed to have stated his/her opinion based on details entered in the bill of indictment. <Amended on Jan. 6, 2016; Jun. 9, 2020> |
| (2) | The defendant and defense attorney may make a statement and shall have an opportunity to make a final statement. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 355 (Alteration of Bills of Indictment) |
| (1) | The military prosecutor may add, withdraw or alter the facts constituting an offense subject to public prosecution recorded in the bill of indictment or applicable provisions of law with the permission of the military court. In such cases, the military court shall render permission insofar as the uniformity of the facts constituting an offense subject to public prosecution is not damaged. <Amended on Jan. 6, 2016> |
| (2) | If the military court recognizes it appropriate in view of the progress of trial, it shall request to add or alter the facts constituting an offense subject to public prosecution or applicable provisions of law. |
| (3) | When the military court adds, withdraws or alters the facts constituting an offense subject to public prosecution or applicable provisions of law, it shall promptly announce the reasons to the defendant or defense attorney. |
| (4) | If the military court recognizes that the addition, withdrawal or alteration of criminal facts subject to judgement under paragraphs (1) through (3) or applicable provisions of law are likely to aggravate the disadvantage of the defendant, it may suspend the trial proceedings by ruling for a period necessary for the defendant to prepare for necessary defense ex officio or at the request of the defendant or defense attorney. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 356 (Separation, Incorporation and Resumption of Pleadings) |
When the military court recognizes it necessary, it may separate or incorporate pleadings, or resume closed pleadings ex officio or at the request of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 357 (Suspension of Trial Proceedings) |
| (1) | If the defendant is incompetent to discern right and wrong, or lacks sufficient mental capacity to make a decision, the military court shall suspend the trial proceedings by ruling while he/she is in such condition after hearing the opinions of the military prosecutor or defense attorney. <Amended on Jan. 6, 2016> |
| (2) | If the defendant is unable to attend the court on the court date due to illness, the military court shall, after hearing the opinions of the military prosecutor and defense attorney, suspend the trial proceedings by ruling until such defendant is able to attend the court. <Amended on Jan. 6, 2016> |
| (3) | When the military court suspends the trial proceedings pursuant to paragraph (2), it shall hear the opinions of a physician. |
| (4) | When it is obvious that the defendant is to be judged innocent, acquitted or exempted from sentence in his/her case, or that the public prosecution against him/her is to be dismissed, the trial shall proceed in the absence of such defendant even when causes prescribed in paragraphs (1) and (2) exist. |
| (5) | Paragraphs (1) and (2) shall not apply where a proxy can appear before the military court pursuant to the latter part of Article 325 other than each subparagraph. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 358 (Renewal of Trial Proceedings) |
When a military judicial officer has been replaced after the public trial commenced, trial proceedings shall be renewed: Provided, That where only judgment is to be pronounced, this shall not apply.
[This Article Wholly Amended on Dec. 29, 2009]
Subsection 2 Evidence
| Article 359 (Law of Evidence) |
| (1) | Fact finding shall be based on evidence. |
| (2) | Criminal facts shall be proven beyond reasonable doubt. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 359-2 (Exclusion of Illegally Obtained Evidence) |
Any evidence obtained in violation of due process shall not be admitted.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 360 (Principle of Free Evaluation of Evidence) |
The probative value of evidence shall be subject to the discretionary judgment of a judge.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 361 (Admissibility of Evidence of Confession under Duress, etc.) |
When reasons exist to suspect that the confession of a defendant has been involuntarily extracted through torture, violence, threat, unduly prolonged detention or by other means, such confession shall not be admitted as evidence of guilt.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 362 (Admissibility of Evidence of Unfavorable Confession) |
When the confession of a defendant is the only evidence unfavorable to such defendant, such confession shall not be taken as evidence of guilt.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 363 (Hearsay Evidence and Restrictions on Admissibility of Evidence) |
Except as prescribed in Articles 364 through 369, any document containing a statement in place of the statement made on the date of preparatory hearing or court date, or any statement of which contents are another person’s statement made on a day other than the date of preparatory hearing or court date shall not be admitted as evidence. [This Article Wholly Amended on Dec. 29, 2009]
| Article 364 (Protocols of Military Court or Military Judge) |
The protocol which contains statements made by the defendant or persons other than the defendant on the date of preparatory hearing or court date and the protocol which contains the results of examination of evidence by the military court or military judge shall be admitted as evidence. The same shall apply to a protocol prepared pursuant to Articles 226 and 261. [This Article Wholly Amended on Dec. 29, 2009]
| Article 365 (Protocols Prepared by Military Prosecutors or Military Judicial Police Officers) |
| (1) | A protocol in which the military prosecutor has recorded a statement of a defendant when the defendant was still a suspect is admissible as evidence, only if it is acknowledged that it has been prepared in compliance with due process and methods, and that the contents of which are the same as the defendant’s statement judging from the statement made by the defendant on the day of preparatory hearing or court date, and that the statement recorded in the protocol was made under particularly reliable circumstances. <Amended on Jan. 6, 2016> |
| (2) | Notwithstanding paragraph (1), if the defendant denies the authenticity in the formation of protocol, it is admissible as evidence, only if it is proven by a video product or any other objective means that the statement recorded in the protocol is the same as what the defendant has stated and has been made under particularly reliable circumstances. |
| (3) | A protocol for examination of a suspect prepared by an investigative agency other than the military prosecutor is admissible as evidence, only if it has been prepared in compliance with due process and methods and the defendant, who was a suspect at the time, or his/her defense attorney admits its contents on the date of preparatory hearing or court date. <Amended on Jan. 6, 2016> |
| (4) | A protocol in which a military prosecutor or military judicial police officer has recorded the statement of a person other than the defendant is admissible as evidence, only if it has been prepared in compliance with the due process and methods, and that the contents of the protocol are the same as what he stated before the military prosecutor or military judicial police officer is proven by the original stater’s statement made on the day of preparatory hearing or court date, a video product or any other objective means, and if the defendant or defense attorney had an opportunity to examine the original stater on the contents of the protocol on the date of preparatory hearing or court date: Provided, That in cases of the statement recorded in the protocol, such statement shall be admitted as evidence only if it is proven that such statement was made under particularly reliable circumstances. <Amended on Jan. 6, 2016> |
| (5) | Paragraphs (1) through (4) shall apply mutatis mutandis to the written statement prepared by a defendant or a person other than the defendant in the investigative process. |
| (6) | A protocol in which a military prosecutor or military judicial police officer has recorded the results of examination of evidence is admissible as evidence, if it is proven that it has been prepared in compliance with due process and methods, and the authenticity of its formation is proven by the author’s statement made on the day of preparatory hearing or court date. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 366 (Written Statements, etc.) |
| (1) | Besides written statements prescribed pursuant to Articles 364 and 365, written statements prepared by a defendant or a person other than the defendant or a document recording such statement (including information stored in information storage media, etc., such as characters, pictures, and videos with contents therein prepared or stated by a defendant or a person other than the defendant; the same shall apply in this Article) which has been prepared in the handwriting of the drafter or stater and bears the signature or seal of the drafter or stater may be admitted as evidence, if the authenticity of the formation is proven according to the statement of the drafter or stater made on the day of preparatory hearing or court date: Provided, That only in cases of a document in which the defendant’s statement is recorded, such document may be admitted as evidence only if the authenticity of formation is proven according to the drafter’s statement made on the day of preparatory hearing or court date and such statement was made under particularly reliable circumstances, notwithstanding the defendant’s statement made on the date of preparatory hearing or court date. <Amended on Dec. 12, 2017> |
| (2) | Notwithstanding the main sentence of paragraph (1), where a person who has prepared a written statement denies the authenticity of its formation on the date of preparatory hearing or court date, such document may be admitted as evidence if the authenticity of the formation is proven by objective means such as digital forensics or appraisal based on findings of scientific analysis: Provided, That a statement prepared by a person other than the defendant is admissible as evidence, only if the defendant or an attorney has an opportunity to interrogate the preparator on the contents of the statement on the date of preparatory hearing or court date. <Newly Inserted on Dec. 12, 2017> |
| (3) | Paragraphs (1) and (2) shall also apply to documents containing the progress and results of expert evidence. <Amended on Dec. 12, 2017> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 367 (Exceptions to Admissibility of Evidence) |
In cases under Articles 365 and 366, if a person who is requested to make a statement on the date of preparatory hearing or court date is unable to make a statement because he/she has died, is ill or residing abroad or his/her whereabouts is unknown or any other cause corresponding thereto exists, the relevant protocol and other documents (including information stored in information storage media, etc. such as characters, pictures, and videos with contents therein prepared or stated by a defendant or a person other than the defendant; the same shall apply in this Article) may be admitted as evidence: Provided, That in cases of protocol or documents, only if the statement or preparation has been made under particularly reliable circumstances, such protocol or documents may be admitted as evidence. <Amended by Dec. 12, 2017> [This Article Wholly Amended on Dec. 29, 2009]
| Article 368 (Documents Rightfully Admissible into Evidence) |
The following documents shall be admitted as evidence:
| 1. | A certificate of family relationship record, a certified copy of notarial deed or documents concerning matters that a public official of Korea or foreign country can certify in the course of duty; |
| 2. | A commercial book, logbook or other commercial documents prepared out of necessity in the course of duty; |
| 3. | Documents prepared under circumstances which lend special credibility to the assertion of the facts contained therein. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 369 (Hearsay Statements) |
| (1) | When a statement made by a person other than the defendant (including a person who has examined the defendant as a suspect before the institution of public prosecution or who has been involved in such examination; the same shall apply thereafter in this Article and Article 372) on the day of preparatory hearing or court date conveys a statement of the defendant, such statement is admissible as evidence only if it is proven that such statement was made under particularly reliable circumstances. |
| (2) | A statement made by a person other than the defendant on the day of preparatory hearing or court date, of which contents are the statement of a person other than the defendant shall be admissible as evidence only if the original stater is unable to make a statement because he/she has died, is ill or resides abroad, his/her whereabouts is unknown, or any cause corresponding thereto exists, and circumstances which lend special credibility to such statement exist. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 370 (Voluntariness of Statements) |
| (1) | Statements made by a defendant or a person other than the defendant shall not be admitted as evidence unless such statements have been made voluntarily. |
| (2) | A document which contains the statements under paragraph (1) shall not be admitted as evidence unless it is proven that the preparation or statements that are the contents thereof have been made voluntarily. |
| (3) | If part of the protocol for examination of evidence records the statement made by the defendant or a person other than the defendant, paragraphs (1) and (2) shall apply only to such part. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 371 (Agreement of Interested Parties and Admissibility of Evidence) |
| (1) | If the authenticity of documents or articles which the military prosecutor and defendant have agreed to admit as evidence is recognized, such documents and articles shall be admitted as evidence. <Amended on Jan. 6, 2016; Jun. 9, 2020> |
| (2) | If the defendant fails to appear before the court when the examination of evidence is possible without the presence of the defendant, an agreement prescribed in paragraph (1) shall be deemed to have been reached: Provided, That where his/her proxy or defense attorney has attended at the court, this shall not apply. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 372 (Evidence for Challenging Probative Power) |
| (1) | Even documents or statements inadmissible as evidence pursuant to Articles 365 through 369 may be admitted into evidence for challenging the probative power of a statement made by a defendant or a person other than the defendant on the day of preparatory hearing or court date. |
| (2) | Notwithstanding paragraph (1), a video product that contains the statement of a defendant or a person other than the defendant may be reproduced to the defendant or the person other than the defendant for viewing on the day of preparatory hearing or court date only if it is recognized as necessary to prod memory of matters of which memory is not clear. |
[This Article Wholly Amended on Dec. 29, 2009]
Subsection 3 Judgment of Public Trial
| Article 372-2 (Date of Pronouncing Sentence) |
| (1) | Sentence shall be pronounced on the date pleadings and arguments are closed: Provided, That where any special reason exists, a separate sentencing date may be designated. |
| (2) | Where sentence is pronounced on the date pleadings and arguments are closed, a written judgment may be prepared after sentence is pronounced. |
| (3) | The sentencing date prescribed in the proviso to paragraph (1) shall be designated within 14 days after the pleadings and arguments are closed. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 373 (Judgment on Incompetency of Jurisdiction) |
When a case pending against a defendant is not under the jurisdiction of the military court, the military court shall pronounce incompetency for lack of jurisdiction.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 374 (Exceptions to Incompetency of Jurisdiction) |
| (1) | When a defendant makes no request, a military court shall not pronounce incompetency for lack of jurisdiction over a case of which jurisdiction belongs to another general military court of the same branch of the armed forces. |
| (2) | A request for incompetency for lack of jurisdiction shall be made before a statement on the defendant’s case is made. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 375 (Matters to be Pronounced Simultaneously with Sentencing) |
| (1) | When the defendant's guilt has been proven, a sentence shall be pronounced except for cases of impunity or suspension of pronouncement of sentence. |
| (2) | The suspension of execution of sentence, calculation of the number of days spent in detention before judgment and period of confinement in the prison workshop shall be pronounced simultaneously with judgment. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 376 (Judgment of Exemption from or Suspension of Sentence) |
When exemption from or suspension of a sentence is to be pronounced on the defendant’s case, such pronouncement shall be made by judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 377 (Reasons to be Indicated in Conviction) |
| (1) | In pronouncing sentence, facts constituting a crime, gist of evidence and applicable provisions of law shall be clearly indicated in the reasons for conviction. |
| (2) | When an oral statement has been made as to legal grounds barring the formation of a crime, or facts constituting grounds by which sentence is aggravated or diminished, decision thereon shall also be clearly indicated. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 378 (Notice of Appeal) |
Where a defendant is sentenced, the presiding judge shall notify the defendant of the period, and the military court to lodge an appeal.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 379 (Confirmation of Judgments by Convening Authority) |
| (1) | The convening authority shall confirm judgments other than the following judgments: innocence; acquittal; dismissal of public prosecution; exemption from sentence; suspension of sentence; suspension of execution of sentence; capital punishment; imprisonment with labor for an indefinite term; and imprisonment without labor for an indefinite term, and may reduce punishment to the extent of 1/3 of the sentenced punishment only in case of a crime which occurred while the suspect faithfully and actively conducted his/her duties such as military operations, education and training, if reasons to recognize that punishment is too heavy in consideration of the matters in the subparagraphs of Article 51 of the Criminal Act exist. <Amended on Jan. 6, 2016> |
| (2) | Confirmation under paragraph (1) shall be conducted within ten days from the date a sentence is pronounced, and be served on the defendant and military prosecutor within ten days from the date of confirmation is performed. If such period has elapsed, confirmation shall be deemed to have been performed as the pronounced judgment. <Amended on Jan. 6, 2016> |
| (3) | The period required for confirmation and service thereof by the convening authority prescribed in paragraph (2) shall be included in the term of imprisonment. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 380 (Judgment of Innocence) |
Innocence shall be ruled if the defendant’s case does not constitute a crime or facts constituting a crime are not proven.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 381 (Judgment of Acquittal) |
In any of the following cases, acquittal shall be pronounced by judgment:
| 1. | When a judgment has been finally rendered; |
| 2. | When amnesty has been proclaimed; |
| 3. | When the prescription of a public prosecution has expired; |
| 4. | When a sentence has been repealed due to the amendment or repeal of statutes after crime was committed. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 382 (Judgment Dismissing Public Prosecution) |
In any of the following cases, public prosecution shall be dismissed by judgment:
| 1. | When the military court has no jurisdiction over the defendant; |
| 2. | When the procedure for instituting a public prosecution is void by reason of its having been contrary to the provisions of Acts; |
| 3. | When a new public prosecution is instituted on a case for which public prosecution has been already instituted; |
| 4. | When a public prosecution has been instituted in violation of Article 384; |
| 5. | When withdrawal of a complaint has been made in a case which is prosecuted only upon a complaint; |
| 6. | When the victim has expressed his/her intention of not wishing to punish a wrongdoer in a case which cannot be prosecuted against the clear intention of the victim, or the intention of wishing to punish has been withdrawn. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 383 (Ruling Dismissing Public Prosecution) |
| (1) | In any of the following cases, public prosecution shall be dismissed by ruling: |
| 1. | When public prosecution has been withdrawn; |
| 2. | When the defendant has died; |
| 3. | When a trial cannot be initiated pursuant to Article 17; |
| 4. | When facts recorded in the bill of indictment do not constitute a crime even if they are true. |
| (2) | An immediate appeal may be lodged against the ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 384 (Withdrawal of Public Prosecution and Reinstitution of Public Prosecution) |
When a ruling of dismissing public prosecution becomes final following the withdrawal of public prosecution, a new public prosecution can be instituted only if other important evidence concerning the facts constituting an offense has been found after the public prosecution was withdrawn.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 385 (Judgment without Oral Statements of Defendants) |
When a defendant does not make a statement, retires from the courtroom without the permission of the presiding judge or is ordered to retire from courtroom by the presiding judge for the maintenance of order, judgment may be pronounced without such defendant making a statement.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 386 Deleted. <Jan. 9, 2020> |
| Article 387 Deleted. <Jan. 9, 2020> |
| Article 388 (Sentence of Innocence, etc. and Effect of Detention Warrant) |
Where innocence, acquittal, exemption from punishment, suspension of sentence, suspension of execution of sentence, dismissal of public prosecution, fine, or minor fine is sentenced, or the execution is exempted, the detention warrant shall lose its effect.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 389 (Pronouncement of Confiscation and Seized Article) |
If seized articles are not pronounced to be confiscated, seizure shall be deemed to have been cancelled.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 390 (Restoration of Stolen Property that Have Been Seized) |
| (1) | Stolen property that have been seized, the reasons for restoration for the victim of which are clear shall be sentenced to restoration for victim by judgment. |
| (2) | When stolen property under paragraph (1) have been disposed, delivery of those obtained in exchange for such property to the victim shall be sentenced. |
| (3) | When no separate sentence is pronounced in regard to property temporarily restored for the victim, restoration shall be deemed to have been pronounced. |
| (4) | Paragraphs (1) through (3) shall not have an effect on the assertion of right by interested parties in accordance with civil procedures. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 391 (Judgment of Provisional Payment for Pecuniary Punishment) |
| (1) | Where the military court pronounces a fine, minor fine or penalty surcharge, it may order the defendant to make provisional payment corresponding to the fine, minor fine or penalty surcharge ex officio or at the request of the military prosecutor if it is recognized that the execution of such penalty is impossible or is likely to be difficult after the judgment becomes finally binding. <Amended on Jan. 6, 2016> |
| (2) | The trial prescribed in paragraph (1) shall be pronounced by judgment simultaneously with the pronouncement of sentence. |
| (3) | The judgment prescribed in paragraph (2) may be executed immediately. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 392 (Procedures for Revocation of Suspension of Execution) |
| (1) | Where a stay of execution of punishment is to be revoked, the military prosecutor of the unit in which the sentencing military court was established or the military prosecutor of the Military Prosecutors’ Office having jurisdiction over the location of the person who has been sentenced to such punishment or over the unit to which such person is attached shall request it to such military court: Provided, That where the sentence was announced by the High Military Court, the military prosecutor of the competent high Military Prosecutors’ Office shall request it to the High Military Court. <Amended on Jan. 6, 2016> |
| (2) | The military court that has received a request under paragraph (1) shall render a ruling after hearing the opinions of the defendant or representative. |
| (3) | An immediate appeal may be lodged against the ruling under paragraph (2). |
| (4) | Paragraphs (2) and (3) shall apply mutatis mutandis where suspended sentence is pronounced. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 393 (Procedures to be Determined in Concurrent Offenders) |
| (1) | Where a punishment is to be determined in accordance with Article 36, 39 (3) or 61 of the Criminal Act, the military prosecutor shall request the military court which rendered final judgment on the facts constituting the crime: Provided, That where a suspended punishment is to be pronounced pursuant to Article 61 of the Criminal Act, Article 377 shall govern and the reasons for rescinding the suspension of pronouncement shall be clarified. <Amended on Jan. 6, 2016> |
| (2) | Article 392 (2) shall apply mutatis mutandis to paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 394 (Judgment of Extinction of Punishment) |
| (2) | Sentencing in accordance with the request prescribed in paragraph (1) shall be rendered by ruling. |
| (3) | An immediate appeal may be lodged against the ruling of dismissing the request prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 1 Common Provisions
| Article 395 (Persons Authorized to Lodge Appeals) |
The military prosecutor or defendant may lodge an appeal. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 396 (Persons Entitled to File Complaint against Rulings) |
When a person, other than the military prosecutor or defendant, has been issued a ruling, he/she may lodge an appeal. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 397 (Persons Other than Interested Parties Authorized to Lodge Appeals) |
The legal representative of defendant may file an appeal for the defendant.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 398 (Persons Other than Interested Parties Authorized to Lodge Appeals) |
| (1) | The spouse, lineal relatives or siblings of the defendant, or the representative or defense attorney in the lower court may lodge an appeal for the defendant. |
| (2) | The appeal prescribed in paragraph (1) shall not be lodged against the clearly expressed intention of the defendant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 399 (Appeal against Part of Judgment) |
| (1) | An appeal may be partially filed against judgment. |
| (2) | A partial appeal against judgment shall have effect over a part having inseparable relationship with such aforementioned part. |
| (3) | When an appeal has been lodged without limiting part of judgment, appeal against the whole judgment shall be deemed to have been lodged. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 400 (Time Limit for Lodging Appeals) |
| (1) | An appeal may be lodged in writing within the time limit. |
| (2) | The time limit for lodging an appeal shall start to run from the date judgment is pronounced or notified: Provided, That in cases of judgment subject to confirmation by the convening authority, the time limit shall run from the day confirmation by the convening authority prescribed in Article 379 (2) is served. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 401 (Special Rules for Persons in Prison) |
| (1) | When a person in prison has submitted a written appeal to the prison warden or a person who stands in for prison warden within the time limit for lodging an appeal, such appeal shall be deemed to have been lodged within the time limit for lodging an appeal. |
| (2) | If the defendant is unable to prepare a written appeal in cases under paragraph (1), the prison warden or a person who stands in for prison warden shall write an appeal for the defendant or have an attached public official write an appeal for the defendant. |
| (3) | The prison warden or a person who stands in for prison warden shall submit the written appeal to the military court of original judgment and notify the military court of original judgment of the date such written appeal was received. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 402 (Persons Authorized to Request for Reinstatement of Right of Appeal) |
If a person authorized to lodge an appeal pursuant to the provisions of Articles 395 through 398 has not been able to lodge an appeal by the deadline for lodging an appeal for reasons he/she or proxy was not responsible, he/she may make a request for the reinstatement of the right of appeal [This Article Wholly Amended on Dec. 29, 2009]
| Article 403 (Method of Request for Reinstatement of Right of Appeal) |
| (1) | The request for reinstatement of right of appeal shall be submitted to the military court of original judgment in writing within the period corresponding to the deadline for lodging an appeal from the date reasons preventing appeal cease to exist. |
| (2) | When a request for reinstatement of right of appeal is made, reasons that are the cause of such request shall be explained. |
| (3) | A person who requests the reinstatement of right of appeal shall lodge an appeal simultaneously with such request. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 404 (Ruling on Requests for Reinstatement of Right of Appeal) |
| (1) | The military court that has received a request for the reinstatement of right of appeal shall determine whether to permit the request. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 405 (Requests for Reinstatement of Right of Appeal and Suspension of Execution) |
| (1) | When the military court, upon the receipt of a request for the reinstatement of right of appeal, shall render a ruling suspending the execution of judgment until a ruling prescribed in Article 404 (1) is rendered. |
| (2) | When needs exist to confine a defendant where a ruling suspending execution prescribed in paragraph (1) has been rendered, a detention warrant shall be issued: Provided, That only where conditions prescribed in Article 110 are met, a detention warrant shall be issued. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 406 (Waivers and Withdrawals of Appeals) |
A military prosecutor, defendant or a person prescribed in Article 396 may waive or withdraw an appeal: Provided, That where the defendant or the person prescribed in Article 398 has been sentenced to death or imprisonment with or without labor for an indefinite term, he/she shall not waive an appeal. <Amended on Jan. 6, 2016; Jun. 9, 2020> [This Article Wholly Amended on Dec. 29, 2009]
| Article 407 (Waiver, etc. of Appeal and Approval of Legal Representative) |
When a defendant who has a legal representative waives or withdraws an appeal, he/she shall obtain approval from the legal representative: Provided, That where obtaining approval is impossible due to the death of the legal representative or other reasons, this shall not apply.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 408 (Waivers of Appeals and Approval of Defendant) |
The legal representative of a defendant or a person prescribed in Article 398 may waive an appeal with the approval of the defendant. [This Article Wholly Amended on Dec. 29, 2009]
| Article 409 (Method of Waiving Appeal, etc.) |
| (1) | The waiver or withdrawal of an appeal shall be made in writing: Provided, That in a courtroom, it may be made orally. |
| (2) | Where the waiver or withdrawal of an appeal has been made orally, reasons therefor shall be entered in the protocol. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 410 (Jurisdiction over Waivers of Appeals, etc.) |
The waiver of an appeal shall be filed with the military court of original judgment and the withdrawal of an appeal shall be filed with the High Military Court or the Supreme Court: Provided, That in cases the court records have not been sent to the High Military Court or the Supreme Court, the withdrawal of an appeal may be filed with the military court of original judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 411 (Prohibition of Re-Appealing after Waiver of Appeal) |
A person who has waived or withdrawn an appeal or a person who has agreed to waive or withdraw an appeal shall not re-appeal the same case.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 412 (Special Rules for Defendants in Prison) |
Article 401 shall apply mutatis mutandis where a defendant in prison makes a request for the reinstatement of right of appeal, or waives or withdraws an appeal. [This Article Wholly Amended on Dec. 29, 2009]
| Article 413 (Notification to other Parties of Waiver, etc. of Appeals) |
When an appeal, waiver or withdrawal of an appeal or request for the reinstatement of right of appeal is made, the military court or supreme court shall notify the other parties of such fact.
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 2 Appeals against Judgment in Trial Court
| Article 414 (Judgments subject to Appeal) |
An appeal may be lodged against a judgment of the general military court to the High Military Court where any of the following reasons exists:
| 1. | When the violation of the Constitution, Acts, orders or rules has influenced judgment; |
| 2. | Deleted; <Jun. 9, 2020> |
| 3. | When a certain punishment is revoked or altered, or pardon is issued after the judgment has been rendered; |
| 4. | When the recognition of jurisdiction or of violation of jurisdiction has violated Acts; |
| 5. | When the composition of military court that has rendered the judgment is in violation of Acts; |
| 6. | When a military judicial officer who was not permitted to participate in the trial of a case pursuant to law has participated in the trial of such case; |
| 7. | When a military judicial officer who did not participate in the hearing of a case has participated in the judgment of such case; |
| 8. | When the provisions concerning making a public trial to open to the public have been violated; |
| 9. | When reasons are not attached to the judgment or contradiction is found in the reasons; |
| 10. | When a ground for request for retrial exist; |
| 11. | When a misunderstanding of a fact has influenced the judgment; |
| 12. | When grounds exist to recognize that the sentencing has been unreasonable. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 415 (Deadline for Lodging Appeal) |
The deadline for lodging an appeal shall be seven days.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 416 (Methods of Lodging Appeal) |
When an appeal is lodged, a written appeal shall be submitted to the military court of original judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 417 (Ruling of Dismissal by Military Court of Original Judgment) |
| (1) | When it is evident that lodging of an appeal has been in violation of legal process or an appeal has been lodged after right of appeal extinguished, the military court of original judgment shall dismiss such appeal by ruling. |
| (2) | An immediate appeal may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 418 (Delivery of Court Records and articles of evidence) |
Except for cases of Article 417, the military court of original judgment shall deliver court records and articles of evidence to the High Military Court within 14 days from the date it received a written appeal. [This Article Wholly Amended on Dec. 29, 2009]
| Article 419 (Receipt and Notice of Court Records, etc.) |
| (1) | When the High Military Court receives court records and articles of evidence, it shall immediately notify the appellant and the opposing party thereof. |
| (2) | When a defense attorney has been appointed before the notice prescribed in paragraph (1), such fact prescribed in paragraph (1) shall be notified to the defense attorney; when a defense attorney has not been appointed, the High Military Court shall, without delay, designate a public defender and notify the appellant and the opposing party of such fact. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 420 (Statement of Grounds of Appeal) |
| (1) | The appellant or defense attorney shall submit a statement of grounds of appeal to the High Military Court within 20 days from the date it receives notice prescribed in Article 419. In such cases, Article 401 shall apply mutatis mutandis. |
| (2) | The reasons for lodging an appeal shall be explained in the statement of grounds of appeal in accordance with the following classifications: <Amended on Jan. 6, 2016> |
| 1. | Where an appeal has been lodged for reasons prescribed in subparagraph 1 of Article 414: To indicate specifically that such reasons exist; |
| 2. | Deleted; <Jun. 9, 2020> |
| 3. | Where an appeal has been lodged for reasons prescribed in subparagraphs 3 and 10 of Article 414: To attach data verifying that such reasons exist; |
| 4. | Where an appeal has been lodged for reasons prescribed in subparagraphs 4, 9, 11 and 12 of Article 414: To cite facts indicated in the court records and the examination of evidence by the military court of original judgment; |
| 5. | Where an appeal has been lodged for reasons prescribed in subparagraphs 5 through 8 of Article 414: To attach a written guarantee of the military prosecutor or defense attorney, to the effect that such reasons exist is reasonably verifiable. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 421 (Written Answers) |
| (1) | The High Military Court upon receipt of a statement of grounds of appeal shall, without delay, serve a duplicate or certified copy thereof on the opposing party. |
| (2) | The opposing party may submit a written answer to the High Military Court within ten days from the date he/she was served a duplicate or certified copy of the statement of grounds of appeal prescribed in paragraph (1). |
| (3) | The High Military Court upon receipt of a written answer shall, without delay, serve a duplicate or certified copy of the statement of grounds of appeal on the appellant or defense attorney. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 422 (Ruling Dismissing Appeal) |
| (1) | In any of the following cases, the High Military Court shall dismiss an appeal by ruling: |
| 1. | When the lower military court has not rendered a ruling dismissing of an appeal in cases falling under Article 417; |
| 2. | When a statement of reasons for lodging an appeal has not been submitted within the deadline prescribed in Article 420 (1): Provided, That where the reasons are written in the petition of appeal or reasons for making an examination ex officio exist, this shall not apply. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 423 (Qualifications for Defense Attorney and Ability to Plead) |
| (1) | No one other than an attorney or an officer with the attorney license shall be appointed as a defense attorney in the trial on appeal. |
| (2) | No one other than a defense attorney shall plead for the defendant in the trial on appeal. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 424 (Reports of Commissioned Military Judge) |
The presiding judge may have a military judge review a petition of appeal, statement of grounds of appeal and written answer, and make a report thereof in a pleading on the court date.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 425 (Method of Pleading) |
The military prosecutor and defense attorney shall plead according to the statement of grounds of appeal. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 426 (Presence of Defendant) |
| (1) | If a defendant fails to appear the court on the court date, another court date shall be fixed. |
| (2) | If a defendant fails to appear the court on the newly fixed court date without justifiable reasons, judgment may be rendered without the statement of the defendant. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 427 (Extent of Examination) |
The High Military Court shall examine the reasons included in the statement of grounds of appeal.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 428 (Reasons for ex officio Examination) |
Even if grounds that have influenced judgment are not included in the statement of grounds of appeal, the High Military Court may examine the grounds ex officio.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 429 (Examination of Facts) |
| (1) | When the High Military Court makes an examination prescribed in Articles 427 and 428, it may, if necessary, examine facts ex officio or on the application of the military prosecutor, defendant or defense attorney: Provided, That in cases of evidence for which examination has not been applied before the closing of pleadings in the court of first instance and of which reasons have been explained, an examination shall be made only when it is necessary to prove that unreasonableness in determinating punishment or an erroneous determination of fact has influenced judgment. <Amended on Jan. 6, 2016> |
| (2) | A military judge may be required to make an examination prescribed in paragraph (1) or such examination may be entrusted to a military judge of another military court. In such cases, the commissioned military judge or entrusted military judge shall have the same authority as the military court, presiding judge or military judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 430 (Judgment of Dismissal of Appeal) |
| (1) | If no reason falling under any of the subparagraphs of Article 414 exists, an appeal shall be ruled dismissed. |
| (2) | When it is evident that no reason for lodging an appeal exists, such appeal may be ruled dismissed without pleadings in accordance with the petition of appeal, statement of grounds of appeal and other records on appeal. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 431 (Judgment of Reversal) |
When reasons falling under any of the subparagraphs of Article 414 exist, the judgment of the lower court shall be reversed by judgment. [This Article Wholly Amended on Dec. 29, 2009]
| Article 432 (Reversal for Co-Defendants) |
Where the judgment of a lower court is reversed for the benefit of a defendant and the reasons for reversal are common to the co-defendants who have lodged an appeal, the judgment of the lower court shall also be reversed for such co-defendants.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 433 (Reversal and Remand) |
When a legitimate public prosecution has been dismissed or the judgment of a lower court is reversed because the recognition of violation of jurisdiction is reversed for reasons of violation of law, such case shall be ruled remanded to the lower military court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 434 (Reversal and Transfer) |
When the judgment of a lower court is reversed on the grounds that the recognition of jurisdiction is illegal, the case shall be transferred to the competent military court by judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 435 (Reversing and Rendering) |
Where the High Military Court reverses the judgment of the original court, it may directly render judgment on the defendant’s case if it recognizes that the case is fully justifiable by the court records and evidence examined by the military court of original judgment or the High Military Court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 436 (Remand or Removal) |
Where an original judgment has been reversed, except for cases prescribed in Articles 433 though 435, the case shall be remanded to the military court of original judgment or be removed to the military court established in the unit superior to the unit in which the military court of original judgment is established. [This Article Wholly Amended on Dec. 29, 2009]
| Article 437 (Prohibition of Disadvantageous Alteration) |
Where an appeal has been lodged by or for a defendant, no penalty heavier than that of the original judgment shall be pronounced.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 438 (Ruling Dismissing Prosecution) |
| (1) | In the case of any of the subparagraphs of Article 383 (1), the High Military Court shall reject the public prosecution by its ruling. <Amended on Jun. 9, 2020> |
| (2) | An immediate appeal may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 439 (Methods of Recording Court Records) |
A decision on the reasons for lodging an appeal shall be recorded in the court records, and the facts and evidence recorded in the original judgment may be cited.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 440 (Binding Force of Appellate Trials) |
The military court to which a case has been remanded or transferred shall be bound by the interpretation of statutes decided in the judgment of the High Military Court concerning such case.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 441 (Provisions to be Applied mutatis mutandis) |
Unless prescribed otherwise in this Section, provisions concerning public trial in Section 3 of Chapter II of Part II (excluding Article 379) shall apply nutatis mutandis to the trial on an appeal case. [This Article Wholly Amended on Dec. 29, 2009]
SECTION 3 Appeals to Supreme Court
| Article 442 (Judgment Subject to Appeal) |
An appeal may be lodged against a judgment by the High Military Court on the grounds that reasons falling under any of the following subparagraphs exist in such judgment:
| 1. | When a violation of the Constitution, Act, order or rule has influenced the judgment; |
| 2. | Deleted; <Jun. 9, 2020> |
| 3. | Deleted; <Jun. 9, 2020> |
| 4. | When certain punishment is repealed or altered, or pardon is given after judgment has been rendered; |
| 5. | When reasons for request for retrial exist; |
| 6. | When the recognition of jurisdiction of the High Military Court has violated Acts; |
| 7. | When erroneous determination of facts has influenced judgment of a case on which death, imprisonment with labor for an indefinite term, or imprisonment with or without labor for 10 year or more has been pronounced, or obvious grounds to recognize that the determination of punishment has been highly unfair exist. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 443 (Direct Appeal) |
| (1) | In any of the following cases, an appeal against the judgment of a general military court may be lodged directly to the Supreme Court without lodging an appeal to the High Military Court: |
| 1. | When the general military court has not applied statutes to the facts that it recognized, or has made a mistake in applying statutes; |
| 2. | When certain punishment is repealed or altered, or pardon is issued after judgment has been rendered by the general military court; |
| 3. | When the recognition of jurisdiction of the general military court has violated Acts. |
| (2) | If a person who has lodged an appeal prescribed in paragraph (1) against the judgment of the court of first instance directly to the Supreme Court lodges an appeal against such judgment to the High Military Court, the appeal lodged directly to the Supreme Court shall lose its effect: Provided, That in cases of withdrawal of appeal to the High Military Court or a ruling on the dismissal of appeal to the High Military Court, this shall not apply. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 444 (Time Limit to Lodge Appeal) |
The time limit to lodge an appeal to the Supreme Court shall be seven days.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 445 (Method of Pleading) |
| (1) | The military prosecutor and defense attorney shall plead according to the statement of grounds of appeal and written answer. |
| (2) | If the Supreme Court recognizes it necessary, it may have the military prosecutor of the High Military Court or defense attorney in the military court of original judgment make a statement ex officio or at the request of the military prosecutor, defendant or defense attorney. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 446 (Sentence through Paper Hearing) |
| (1) | The Supreme Court may render judgment without oral pleadings after examining the petition of appeal, statement of grounds of appeal and other court records. |
| (2) | The Supreme Court may, if necessary, hold oral proceedings and hear the statements of a reference person. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 447 (Judgment of Dismissal of Appeal to Supreme Court) |
When it is obvious that an appeal to the Supreme Court is groundless, such appeal may be ruled dismissed without oral proceedings.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 448 (Reversal of Judgment of Lower Court) |
Where reasons prescribed in the subparagraphs of Article 442 and the subparagraphs of Article 443 (1) exist, the Supreme Court shall reverse the judgment of the lower court by judgment. [This Article Wholly Amended on Jun. 9, 2020]
| Article 449 (Reversal, Removal and Remand) |
| (1) | Where the judgment of the lower court of a general court or High Military Court is reversed for reasons prescribed in the subparagraphs of Article 443 (1), the Supreme Court shall remove the case to the competent court having jurisdiction by judgment. |
| (2) | Where the judgment of the lower court is ruled reversed for reasons other than those prescribed in paragraph (1), such case shall be remanded to the military court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 450 (Provisions to be Applied mutatis mutandis) |
| (1) | Unless prescribed otherwise in this Section, provisions concerning appeal against judgment in a trial court in Section 2 of this Chapter shall apply nutatis mutandis to the judgment on appeal to the Supreme Court. |
| (2) | Unless prescribed otherwise in this Section concerning the procedures of trial of appeal to the Supreme Court, the provisions concerning the trial on an appeal to the Supreme Court prescribed by the Criminal Procedure Act shall apply nutatis mutandis thereto. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 451 (Request for Correction of Judgment) |
| (1) | When a mistake has been found in the Supreme Court judgment, the Supreme Court may correct it ex officio or at the request of the military prosecutor, appellant or defense attorney by judgment. |
| (2) | The request under paragraph (1) shall be made within 10 days from the date the judgment was pronounced. |
| (3) | The request under paragraph (1) shall be made in writing describing reasons therefor. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 452 (Correction of Judgment) |
| (1) | The correction of judgment may be pronounced without oral proceedings. |
| (2) | If the Supreme Court recognizes that it is unnecessary to correct judgment, it shall dismiss such request by ruling. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 453 (Remand of Court Records, etc.) |
When the Supreme Court has pronounced a judgment or has ruled an appeal dismissed, it shall remand the court records and evidence to the military court that has made the judgement.
[This Article Wholly Amended on Dec. 29, 2009]
SECTION 4 Complaint against Ruling
| Article 454 (Trial subject to Complaint) |
When a person is dissatisfied with the ruling of a military court, he/she may lodge a complaint: Provided, That this shall not apply where it is specifically provided in this Act.
[This Article Wholly Amended on Jun. 9, 2020]
| Article 454-2 (Complaints against Rulings Prior to Judgment) |
| (1) | Against a ruling rendered, prior to the judgment, concerning the jurisdiction of a military court or the proceedings, no complaint shall be filed except specifically where it is possible to file an immediate complaint. |
| (2) | Paragraph (1) shall not apply to a ruling relating to detention, release on bail, seizure or restoration of articles seized, or a ruling relating to confinement of the criminal defendant in connection with examination by expert witnesses. |
[This Article Newly Inserted on Jun. 9, 2020]
| Article 454-3 (Time to Lodge Ordinary Complaint) |
With the exception of an immediate complaint, a complaint may be filed at any time: Provided, That this shall not apply when it is no longer of advantage to have the ruling of the lower court cancelled.
[This Article Newly Inserted on Jun. 9, 2020]
| Article 455 (Time Limit to Lodge Immediate Complaint) |
The time limit to lodge an immediate complaint shall be seven days. <Amended on Feb. 4, 2020>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jun. 9, 2020]
| Article 456 (Procedures for Lodging Complaint) |
When a person lodges a complaint, he/she shall lodge a written complaint to the military court of original judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 457 (Ruling Dismissing Complaint by Military Court of Original Judgment) |
| (1) | When it is evident that the lodging of a complaint is contrary to the legal methods or a complaint has been lodged after the right of complaint extinguished, the military court of original judgment shall dismiss such complaint by ruling. |
| (2) | An immediate complaint may be lodged against a ruling under paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 458 (Correction of Ruling by Military Court of Original Judgment) |
| (1) | When the original military court recognizes that a complaint is reasonable, it shall correct the ruling. |
| (2) | When the original military court recognizes that all or part of a complaint is groundless, it shall send the written complaint to the military court to which a complaint has been lodged within three days it received such written complaint accompanied by a written opinion. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 459 (Immediate Complaints and Suspension of Execution) |
During the time limit to lodge an immediate complaint or during which such a complaint is lodged, the execution of judgment shall be suspended. <Amended on Jun. 9, 2020>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jun. 9, 2020]
| Article 459-2 (Ordinary Complaints and Suspension of Execution) |
With the exception of an immediate complaint, a complaint shall not have the effect of suspending the execution of judgment: Provided, That the military court of original judgment or the military court to which a complaint has been lodged may, by its ruling, suspend the execution until the complaint shall have been adjudicated.
[This Article Newly Inserted on Jun. 9, 2020]
| Article 460 (Delivery of Court Records, etc.) |
| (1) | If the military court of original judgment deems necessary, it shall send court records and articles of evidence to the military court to which a complaint has been lodged. |
| (2) | The military court to which a complaint has been lodged may request the military court of original judgment to deliver court records and articles of evidence. |
| (3) | In cases falling under paragraphs (1) and (2), the military court to which a complaint has been lodged shall notify the parties of the reason within five days from the date court records and articles of evidence are received. <Newly Inserted on Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 461 (Statements by Military Prosecutors) |
A military prosecutor may state his/her opinion concerning a complaint case. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 462 (Ruling Dismissing Complaint) |
When the military court of original judgment does not render a ruling dismissing a complaint in cases falling under Article 457, the military court to which a complaint has been lodged shall dismiss such complaint by ruling. [This Article Wholly Amended on Dec. 29, 2009]
| Article 463 (Dismissal of Complaint and Recognition of Grounds of Complaint) |
| (1) | When a complaint is recognized as groundless, such complaint shall be ruled dismissed. |
| (2) | When a complaint is recognized as reasonable, the ruling of original judgment shall be revoked by ruling, and, if necessary, such complaint case shall be directly put on trial. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 464 (Refiling Complaint) |
An immediate complaint may be lodged against a ruling of the military court to which a complaint has been lodged or the High Military Court only for reasons that violations of the Constitution, Acts, orders or rules have influenced trial.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 465 (Quasi-Complaint) |
| (1) | If a person is dissatisfied by judgment falling under any of the following subparagraphs, which has been pronounced by the presiding judge or commissioned judge, he/she may request the military court to which such military judicial officer is attached to revoke or alter such judgment: |
| 1. | Judgment dismissing a motion for challenge; |
| 2. | Judgment concerning misdemeanor imprisonment, bail, seizure or return of seized properties; |
| 3. | Judgment ordering custody of a defendant for examination by expert witness; |
| 4. | Judgment ordering the witness, expert witness or interpreter to pay an administrative fine or to compensate for expenses. |
| (2) | When the military court has received a request under paragraph (1), it shall render a ruling. |
| (3) | The request prescribed in paragraph (1) shall be made within seven days from the date the judgment was notified. <Amended on Feb. 4, 2020> |
| (4) | In cases under paragraph (1) 4, during the period of request prescribed in paragraph (3) and during which a request is made, the execution of judgment shall be suspended. <Amended on Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 466 (Quasi-Complaint) |
When a person is dissatisfied with a disposition of a military prosecutor or military judicial police officer concerning confinement, seizure or return of seized properties or the disposition concerning the attendance, etc. of a defense attorney prescribed in Article 235-2, he/she may file a request for the revocation or alteration of such disposition with the military court having jurisdiction over the place of execution of such duties or the military court having jurisdiction over the unit to which such military prosecutor is attached. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 467 (Method of Quasi-Complaint) |
The request prescribed in Articles 465 and 466 shall be filed with the competent military court in writing. [This Article Wholly Amended on Dec. 29, 2009]
| Article 468 (Provisions to be Applied mutatis mutandis) |
Articles 459-2 and 462 through 464 shall apply mutatis mutandis to requests prescribed in Articles 465 and 466. <Amended on Jun. 9, 2020> [This Article Wholly Amended on Dec. 29, 2009]
PART III SPECIAL PROCEEDINGS
| Article 469 (Grounds for Retrial) |
Where any of the following grounds exists, a retrial may be requested for the benefit of a person who has been pronounced guilty in the final judgment: <Amended on Jan. 6, 2016>
| 1. | When documents and articles of evidence admitted into evidence in the original judgment has been proven forged or altered according to the finally binding judgment; |
| 2. | When testimony, expert opinion, translation or interpretation admitted into evidence in the original judgment has been proven forged or altered according to the finally binding judgment; |
| 3. | Where a person was pronounced guilty due to a false accusation, and such accusation has been proven false according to the finally binding judgment; |
| 4. | When a trial admitted into evidence in the original judgment has been altered according to the finally binding trial; |
| 5. | When unmistakable evidence has been newly found by which innocence or acquittal is to be recognized for a person who was convicted, or by which exemption from punishment or a crime less serious than that recognized by a lower court is to be recognized for a person who was sentenced to punishment; |
| 6. | When a case for which a judgment of guilty was pronounced for violation of copyright, patent right, utility model right, design right or trademark right, and an administrative decision of invalidation of such right or judgment of invalidation of such right has become a finally binding one; |
| 7. | When it is proven according to the final judgment that an offense has been committed in connection with duties by a military judicial officer or judicial officer who has participated in the original judgment, judgment in the previous trial, or examination on which such judgment is based, or by a military prosecutor, public prosecutor, military judicial police officer or judicial police officer who has participated in instituting a public prosecution or investigation on which such public prosecution is based: Provided, That where a public prosecution was instituted against the military judicial officer, judicial officer, military prosecutor, public prosecutor, military judicial police officer or judicial police officer before the original judgment has been rendered, a retrial may be requested only when the Supreme Court or military court that rendered the original judgment had not been aware of the reasons. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 470 (Reasons for Retrial) |
| (1) | A retrial may be requested for the benefit of a person upon whom has been rendered a final judgment dismissing an appeal against judgment in a trial court or dismissing an appeal to the Supreme Court only where reasons prescribed in the subparagraphs 1, 2 and 7 of Article 469 exist. |
| (2) | After a judgment on a request for a retrial of the final judgment in the first instance has been rendered, a retrial of judgment dismissing an appeal against the judgment of trial court shall not be requested any more. |
| (3) | After a judgment on a request for a retrial of the final judgment in the first instance or second instance has been rendered, a retrial of judgment dismissing an appeal to the Supreme Court shall not be requested any more. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 471 (Evidence Substituting Final Judgment) |
Where it is impossible to obtain a final judgment when the fact that a crime is proven by the final judgment pursuant to Articles 469 and 470 is to be used as the grounds for the request for retrial, a retrial may be requested by proving such fact: Provided, That where a final judgment is impossible to obtain because no evidence exists, this shall not apply. [This Article Wholly Amended on Dec. 29, 2009]
| Article 472 (Jurisdiction over Retrial) |
A request for retrial shall be under the jurisdiction of the Supreme Court or military court that has rendered the original judgment: Provided, That in cases of a request for the retrial of judgment of a general military court of the integrated unit under the direct command and operational control of the Ministry of National Defense, such request for retrial shall be under the jurisdiction of the general military court of the Ministry of National Defense; in cases of a request for the retrial of judgment of the general military court under the command of each military branch, such request for retrial shall be under the jurisdiction of the general military court of the headquarters of each military branch.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 473 (Persons Authorized to Request Retrial) |
A person falling under any of the following subparagraphs may make a request for retrial: <Amended on Jan. 6, 2016>
| 1. | Public prosecutors of the Supreme Prosecutors’ Office and military prosecutors; |
| 2. | Persons who have been pronounced guilty; |
| 3. | Legal representatives of the persons who have been pronounced guilty; |
| 4. | Spouse, lineal relatives or siblings of a dead person or a person having mental or physical disorder, who has been pronounced guilty. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 474 (Retrial which only Military Prosecutor Is Eligible to Make Request) |
No person except a public prosecutor of the Supreme Prosecutors’ Office or military prosecutor shall be eligible to make a request for a retrial for reasons prescribed in subparagraph 7 of Article 469 where the person pronounced guilty has made such persons prescribed in the same subparagraph commit such crime. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jan. 6, 2016]
| Article 475 (Appointment of Defense Attorneys) |
| (1) | Where a person other than a public prosecutor of the Supreme Prosecutors’ Office or military prosecutor make a request for a retrial, he/she may appoint a defense attorney. <Amended on Jan. 6, 2016> |
| (2) | The appointment of defense attorney prescribed in paragraph (1) shall be valid until judgment on the retrial is rendered. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 476 (Time to Request Retrials) |
A retrial may be requested even after the execution of sentence has been completed or even when sentence is not to be executed.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 477 (Request for Retrial and Non-Suspension of Execution) |
The request for retrial shall not have any effect of suspending the execution of sentence: Provided, That in cases of a military prosecutor assigned to a unit in which a competent military court has been established, he/she may suspend the execution of punishment until judgment on the request for retrial is rendered. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 478 (Withdrawal of Request for Retrial) |
| (1) | Requests for retrial may be withdrawn. |
| (2) | A person who has withdrawn a request for retrial shall not re-submit a request for retrial of the same cause. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 479 (Special Rules for Prison Inmate) |
Article 401 shall apply mutatis mutandis to requests for retrial and withdrawal thereof. [This Article Wholly Amended on Dec. 29, 2009]
| Article 480 (Investigation into Facts) |
| (1) | If the Supreme Court or military court recognizes it necessary upon the receipt of a request for retrial, it may order a member of a collegiate division or commissioned military judge to investigate into the reasons for request for retrial or entrust a judge of another court or a military judge of another military court with such investigation. |
| (2) | In cases under paragraph (1), the commissioned judge, commissioned military judge, entrusted judge or entrusted military judge shall have the same authority as the court, military court or presiding judge. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 481 (Ruling on Retrial and Opinions of Interested Parties) |
When the court renders a ruling on a request for retrial, it shall hear the opinions of the requester and the other party: Provided, That where the legal representative of a person pronounced guilty has made a request, the court shall hear the opinions of the person pronounced guilty.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 482 (Ruling of Dismissal of Request) |
When it is obvious that the request for retrial has been made contrary to the legal method or after the termination of right to request, the request shall be dismissed by ruling.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 483 (Ruling of Dismissal of Request) |
| (1) | If the court deems a request for retrial as groundless, it shall rule it dismissed. |
| (2) | When a ruling prescribed in paragraph (1) has been rendered, no person shall request a retrial of the same cause. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 484 (Ruling of Commencement of Retrial) |
| (1) | If a request for retrial is recognized as reasonable, the retrial shall be determined to commence. |
| (2) | When a ruling under paragraph (1) has been made, the execution of sentence may be suspended by ruling. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 485 (Concurrence of Requests and Ruling of Dismissal of Requests) |
| (1) | Where a retrial has been requested for the final judgment dismissing an appeal against the judgment in the trial court or for the judgment in the first instance which has become final according to the aforementioned final judgment, the High Military Court shall rule to dismiss such request for retrial if the military court of the first instance decides on retrial. |
| (2) | Where a retrial has been requested for the final judgment dismissing an appeal to the Supreme Court against the judgment of the court of first instance or second instance, or the judgment of the court of first instance or second instance which has become final according to the aforementioned final judgment, the Supreme Court shall rule to dismiss such request for retrial if the military court of the first instance or second instance decides on retrial. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 486 (Immediate Appeal) |
An immediate appeal may be lodged against rulings prescribed in Articles 482, 483 (1), 484 (1) and 485 (1). [This Article Wholly Amended on Dec. 29, 2009]
| Article 487 (Appointment of Public Defender) |
If a person who has requested the retrial of a case for which the commencement of retrial was determined has not appointed a defense attorney, the Supreme Court or competent military court shall select and appoint a public defender pursuant to Article 62. [This Article Wholly Amended on Dec. 29, 2009]
| Article 488 (Judgment on Retrial) |
| (1) | The Supreme Court or military court shall pass judgment again on a case for which a ruling of commencement of retrial has become final according to the tier of courts except for the cases prescribed in Article 485. |
| (2) | In any of the following cases, Articles 357 (1) and 383 (1) 2 shall not apply to the judgment prescribed in paragraph (1): |
| 1. | When a retrial has been requested for a deceased person or a person suffering from an incurable mental disorder; |
| 2. | When a person pronounced guilty has died or has become a person suffering from an irrecoverable mental disorder before judgment on retrial is delivered. |
| (3) | In cases under paragraph (2), a retrial may be held in the absence of the defendant: Provided, That where the defense attorney is not present, a retrial shall not be held. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 489 (Prohibition of Disadvantageous Alteration) |
No punishment heavier than that sentenced by a lower court shall be sentenced in the retrial.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 490 (Public Announcement of Judgment of Innocence) |
When innocence has been pronounced in the retrial, such judgment shall be publicly announced in the Official Gazette and daily newspapers: Provided, That this shall not apply where a person falling under any of the following expressed his/her intention of not wanting such publication: <Amended on Dec. 18, 2018>
| 1. | A person who is rendered a judgement of not guilty, where reopening of procedure was requested by a person falling under subparagraphs 1 through 3 of Article 473; |
| 2. | The person who requested reopening of procedure, where reopening of procedure was requested by a person falling under subparagraph 4 of Article 473. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 491 (Provisions to be Applied Mutatis Mutandis) |
Article 453 shall apply mutatis mutandis where the Supreme Court has administered justice according to the provisions of this Chapter. <Amended on Jun. 9, 2020> [This Article Wholly Amended on Dec. 29, 2009]
CHAPTER II EXTRAORDINARY APPEAL
| Article 492 (Reasons for Extraordinary Appeal) |
After the judgment of a military court or judgment of the Supreme Court pursuant to this Act has become final and if the Prosecutor General has found that the judgment is in violation of the law, he/she may lodge an extraordinary appeal to the Supreme Court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 493 (Requests to File for Extraordinary Appeal) |
The military prosecutor of the High Military Prosecutors’ Office may submit a document describing reasons prescribed in Article 492 and request the Prosecutor General to lodge an extraordinary appeal. <Amended on Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 494 (Methods of Extraordinary Appeals) |
When an extraordinary appeal is lodged, an application describing the reasons therefor shall be submitted to the Supreme Court.
[This Article Wholly Amended on Dec. 29, 2009]
The public prosecutor or military prosecutor of the High Military Prosecutors’ Office shall make a statement in accordance with the application on the court date. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 496 (Extent of Examination) |
| (1) | The Supreme Court shall make an examination of only the matters included in the application. |
| (2) | The Supreme Court may make an examination of facts concerning jurisdiction, acceptance of public prosecution and legal proceedings. |
| (3) | Article 480 shall apply mutatis mutandis to paragraph (2). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 497 (Judgment of Dismissal) |
If an extraordinary appeal is deemed groundless, it shall be ruled dismissed.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 498 (Judgment of Reversal) |
If an extraordinary appeal is deemed reasonable, a judgment shall be rendered according to the following classifications:
| 1. | Where judgment is in violation of statutes, the part in violation shall be reversed: Provided, That where the original judgment is disadvantageous to the defendant, such original judgment shall be reversed and the defendant’s case shall be remanded or transferred to the High Military Court to adjudicate anew; |
| 2. | Where the legal procedures of original trial have been in violation of statutes, such legal procedures in violation shall be reversed. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 499 (Judgment of High Military Court) |
The High Military Court that has been remanded or transferred with a case shall adjudicate such case anew according to the interpretation of statutes decided by the Supreme Court.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 500 (Effect of Judgment) |
Judgment on an extraordinary appeal shall have no effect on the defendant except for the judgment prescribed in the proviso to subparagraph 1 of Article 498 and Article 499. [This Article Wholly Amended on Dec. 29, 2009]
| Article 501 (Provisions to be Applied mutatis mutandis) |
[This Article Wholly Amended on Dec. 29, 2009]
CHAPTER III SUMMARY PROCEDURES
| Article 501-2 (Case subject to Summary Order) |
| (1) | When a military prosecutor makes a request concerning a case under jurisdiction, the general military court may punish a defendant by a fine, minor fine or seizure by a summary order without procedures in a public trial. <Amended on Jan. 6, 2016> |
| (2) | In cases under paragraph (1), the imposition of penalty surcharge or other incidental disposition may be issued. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-3 (Requests for Summary Order) |
Requests for a summary order shall be made in writing simultaneously with the institution of public prosecution.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-4 (Ordinary Judgment) |
If, upon the request for a summary order, the summary order cannot be issued in a case or issuing a summary order on a case is not appropriate where a summary order has been requested, such case shall be adjudicated according to the procedures in a public trial.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-5 (Method of Summary Order) |
The summary order shall clearly state the facts constituting an offense, applicable statutes, principal penalty, incidental disposition and the fact that a request for formal trial can be made within seven days from the date the notification of summary order is received.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-6 (Notification of Summary Order) |
A summary order shall be notified by serving a written judgment on the military prosecutor and defendant. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-7 (Request for Formal Trial) |
| (1) | The military prosecutor or defendant may request formal trial within seven days from the day he/she is notified of a summary order: Provided, That in cases involving the defendant, he/she shall not be allowed to waive the request for formal trial. <Amended on Jan. 6, 2016> |
| (2) | A request for formal trial shall be made in writing to the military court that has issued such summary order. |
| (3) | If a request for formal trial has been made, the military court shall notify the military prosecutor or defendant of the reason without delay. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-8 (Withdrawal of Request for Formal Trial) |
A request for formal trial may be withdrawn before the court of first instance renders a judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-9 (Ruling of Dismissal) |
| (1) | If it is obvious that the request for formal trial is in violation of the methods prescribed by statutes or has been made after the termination of right to request, such request shall be ruled dismissed. |
| (2) | An immediate appeal may be lodged against a ruling under paragraph (1). |
| (3) | If a request for formal trial is legitimate, it shall be judged according to the procedures of trial. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-10 (Invalidation of Summary Order) |
When judgment is rendered on the request for formal trial, the summary order shall become null and void.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-11 (Effect of Summary Order) |
When the time limit for request for formal trial has passed, or the withdrawal of request or a ruling of dismissing request becomes final, it shall have the same effect as the final judgment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-12 (Prohibition of Disadvantageous Alteration) |
No sentence heavier than a summary order shall not be rendered on a case for which the defendant has requested a formal trial.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-13 (Provisions of Appeal to Supreme Court to be Applied mutatis mutandis) |
| (1) | Articles 397 through 399, 402 through 409 and 411 shall apply mutatis mutandis to the request for formal trial or withdrawal thereof. |
| (2) | Article 426 shall apply mutatis mutandis where a defendant who made a request for formal trial has not attended the formal trial proceedings on the court date. |
[This Article Wholly Amended on Dec. 29, 2009]
CHAPTER IV SUMMARY TRIAL PROCEEDINGS
| Article 501-14 (Cases subject to Summary Trial) |
In order to adjudicate, through prompt and appropriate procedures, a minor criminal case of which evidence of crime is obvious, the military judge of a general military court (hereinafter referred to as "military judge") may sentence a defendant to a fine or minor fine not exceeding 200,000 won according to the summary trial proceedings prescribed in this Chapter.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-15 (Requests for Summary Trial) |
| (1) | The head of the competent military police unit shall request a summary trial to the competent general military court with the approval of the head of a unit in which the competent Military Prosecutors’ Office is established. <Amended on Feb. 4, 2020> |
| (2) | When a summary trial is requested, a written request for summary trial shall be submitted, and the name of the defendant or details by which it is possible to identify the defendant, name of crime, facts constituting a crime and applicable provisions of law shall be inserted in the written request for summary trial. |
| (3) | Where claiming a summary trial, necessary matters for understanding the proceedings for a summary trial shall be notified to the defendant in advance in writing or orally. <Newly Inserted on Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-16 (Submission of Documents and Articles of Evidence) |
The head of the competent military police unit shall submit document or articles of evidence necessary for summary trial to the military judge simultaneously with a request for summary trial. <Amended on Feb. 4, 2020>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-17 (Dismissal of Request, etc.) |
| (1) | If a military judge recognizes that a case cannot be adjudged through summary trial or that it is not appropriate to adjudge a case in accordance with summary trial proceedings, he/she shall dismiss such request for summary trial by ruling. |
| (2) | When a ruling prescribed in paragraph (1) is rendered, the head of the competent military police unit shall transfer the case to the competent general military prosecutors’ office without delay. <Amended on Feb. 4, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-18 (Judgments) |
When a request for summary trial has been made, the military judge shall immediately render a judgment, except in cases prescribed in Article 501-17 (1). [This Article Wholly Amended on Dec. 29, 2009]
| Article 501-19 (Holding of Court) |
| (1) | A trial and the pronouncement of a judgment pursuant to summary trial proceedings shall be made in the open court, but the court shall be established in a place other than the military police unit. <Amended on Feb. 4, 2020> |
| (2) | Court shall open with the attendance of the military judge and clerk. |
| (3) | Where appropriate reasons exist, notwithstanding paragraphs (1) and (2), the military judge may render judgment according to the affidavit of the defendant and documents or articles of evidence under Article 501-16 without holding court. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-20 (Attendance of Defendant) |
Unless prescribed otherwise by this Act or other Acts, the court shall not open if the defendant fails to attend the court on the court date.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-21 (Default Judgment) |
| (1) | The defendant or a person who has received a notice of attendance at a summary trial (hereinafter referred to as "defendant, etc.") may request the military court for default judgment, and when the military court has issued permission for it, judgment may be rendered even when the defendant does not appear before the court. |
| (2) | Matters necessary for the request for default judgment prescribed in paragraph (1) and procedures for the permission thereof shall be prescribed by the Supreme Court Regulations. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-22 (Trial on Court Date) |
| (1) | A military judge shall notify a defendant of the details of the defendant’s case and the fact that he/she has the right to remain silent as prescribed in Article 328-2, and give him/her an opportunity to defend himself/herself. |
| (2) | If deemed necessary, the military judge may examine the evidence existing only in the courtroom by taking proper measures. |
| (3) | The defense attorney may attend the court on the court date, participate in the examination of evidence prescribed in paragraph (2) and express his/her opinions. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-23 (Admissibility of Evidence) |
Articles 362, 365 (2) and 366 shall not apply to the summary trial proceedings. [This Article Wholly Amended on Dec. 29, 2009]
| Article 501-24 (Pronouncement of Summary Trial) |
| (1) | When a person is to be pronounced guilty by a summary trial, punishment, facts constituting a crime and applicable provisions of law shall be clearly stated, and the defendant shall be notified that he/she may make a request for formal trial within seven days. |
| (2) | The participating clerk shall record the contents of pronouncement prescribed in paragraph (1). |
| (3) | When the defendant has expressed his/her opinion in requesting a formal trial to the military judge, such opinion shall be clearly recorded in the records prescribed in paragraph (2). |
| (4) | In cases under Article 501-19 (3) or 501-21, the clerk shall notify the defendant of the fact that a formal trial can be requested within seven days by serving a certified copy of the summary trial record on the defendant in which such fact is inserted additionally: Provided, That in cases under Article 501-21 (1) where the defendant, etc. have, in advance, expressed the purport that the service of a certified copy of summary trial record is unnecessary, a certified copy thereof shall not be served on such defendant, etc. |
| (5) | If the military judge recognizes that the judgment of innocence, acquittal or dismissal of public prosecution on a case is obvious, he/she may pronounce as such and notify it. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-25 (Summary Trial Records) |
| (1) | The name of a defendant, matters by which the defendant is identifiable, text of judgment, facts constituting a crime and applicable provisions of law shall be clearly indicated in the summary trial records, and the military judge shall sign and seal thereon. |
| (2) | Where the defendant has admitted facts constituting a crime and waived a request for formal trial, the preparation of records prescribed in Article 501-24 shall be omitted, the text of the judgment pronounced shall be clearly inserted in the summary trial records, and the military judge shall sign and seal thereon. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-26 (Preservation of Summary Trial Records, etc.) |
When the judgment of summary trial has become final, summary trial records, related documents and evidence shall be preserved by the competent military police unit. <Amended on Feb. 4, 2020>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-27 (Request for Formal Trial) |
| (1) | The defendant who intends to make a request for formal trial shall submit a request for formal trial to the head of a military police unit within seven days from the date he/she received the pronouncement of summary trial or the notice of pronouncement of summary trial. In such cases, the head of a military police unit shall send a request for formal trial to the military judge without delay. <Amended on Feb. 4, 2020> |
| (2) | In cases under Article 501-24 (5), the head of the relevant military police unit may make a request for formal trial within seven days from the date pronouncement was rendered or a notice of pronouncement was given. In such cases, the head of a military police unit shall submit a request for formal trial to the military judge after hearing the opinions of the military prosecutor of the competent military prosecutors’ office. <Amended on Jan. 6, 2016; Feb. 4, 2020> |
| (3) | The military judge shall send the case records and articles of evidence accompanied by a request for formal trial to the head of a military police unit within seven days from the date he/she received a request for formal trial, and the head of the military police unit shall, without delay, send them to the competent military prosecutors’ office, and the Military Prosecutors’ Office shall, without delay, send them to the competent military court. <Amended on Feb. 4, 2020> |
| (4) | Articles 397 through 399, 401 (1) and (2), 402 though 409, 411, 501-8 and 501-9 shall apply mutatis mutandis to the request for formal trial, or to waiver and withdrawal thereof. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-28 (Invalidation of Summary Trial) |
When judgment is pronounced following a request for formal trial, summary trial shall cease to have effect.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-29 (Effect of Summary Trial) |
A summary trial shall have the same effect as final judgment in accordance with the elapse of deadline for requesting a formal trial, waiver of a right to formal trial or withdrawal of such request. The same shall apply where judgment dismissing a request for formal trial has become final.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-30 (Order of Provisional Payment) |
When a military judge pronounces a person guilty in a summary trial, Article 391 shall apply mutatis mutandis. [This Article Wholly Amended on Dec. 29, 2009]
| Article 501-31 (Execution of Sentence) |
| (1) | The head of a military police unit of competent jurisdiction shall execute sentence, and notify the military prosecutor of the result of execution. <Amended on Jan. 6, 2016; Feb. 4, 2020> |
| (2) | When the execution of fines, minor fines and confiscation are complete, the head of a military police unit shall deliver them to the military prosecutor without delay: Provided, That where they are not executable within a considerable period after the judgment of a summary trial became final, the head of the military police unit shall notify it to the military prosecutor, who then may execute them pursuant to Article 520. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 501-32 (Notification of Results of Execution of Summary Trials) |
The head of a military police unit of competent jurisdiction shall notify the military prosecutor of the results of management of a case for which summary trial has been requested pursuant to Article 501-25. <Amended on Jan. 6, 2016; Feb. 4, 2020> [This Article Wholly Amended on Dec. 29, 2009]
| Article 501-33 (Exclusion from Application of Confirmation Provisions) |
The provisions of confirmation prescribed in Article 379 shall not apply to the summary trial in this Chapter. [This Article Wholly Amended on Dec. 29, 2009]
| Article 501-34 (Provisions to be Applied mutatis mutandis) |
If no specific provisions are prescribed in this Chapter concerning summary trial proceedings, provisions outside this Chapter that are not contrary in nature shall apply mutatis mutandis.
[This Article Wholly Amended on Dec. 29, 2009]
PART IV EXECUTION OF JUDGMENT
| Article 502 (Determination and Execution of Judgment) |
Unless prescribed otherwise by this Act, a trial shall be executed after judgment becomes final.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 503 (Direction of Execution) |
| (1) | The military prosecutor of a unit in which the military court that has tried a case is established shall direct the execution of judgment: Provided, That where the execution of judgment requires the direction of the military court or military judicial officer from the nature of judgment, this shall not apply. <Amended on Jan. 6, 2016> |
| (2) | Where the judgment of the original military court is to be executed due to judgment on appeal or withdrawal of appeal, the military prosecutor of the relevant High Military Prosecutors’ Office shall direct the execution: Provided, That where the court records are kept by the general military court, the military prosecutor of the unit in which such military court is established shall direct the execution. <Amended on Jan. 6, 2016> |
| (3) | The judgment on a person prescribed in Article 1 (1) though (3) of the Military Criminal Act, who had been sentenced to punishment before he/she obtained such position and on whom such punishment has not been executed, shall be executed by the military prosecutor according to the entrustment of a public prosecutor. In such cases, the public prosecutor shall serve a certified copy of the written judgment on the military prosecutor of the unit in which the competent military court is established. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 504 (Method of Direction of Execution) |
The execution of judgment shall be directed with documents accompanied by a certified copy or abstract of court records or protocol in which judgment is written: Provided, That where the execution of punishment is not to be directed, it may be directed with the original copy, certified copy or abstract of trial records, or with the certified copy or abstract of protocol with a seal of recognition put thereon.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 505 (Order of Execution of Sentence) |
Where two or more punishments are to be executed, the heaviest punishment shall be executed first except for disqualification, suspension of qualification, fines, minor fines and confiscation: Provided, That where the military prosecutor has obtained permission from the head of the competent unit, he/she may suspend the execution of the heaviest punishment and execute another punishment. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 506 (Execution of Capital Punishment) |
Capital punishment shall be executed according to the command of the Minister of National Defense.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 507 (Determination of Judgment of Capital Punishment and Submission of Court Records) |
When the judgment sentencing capital punishment has been determined, the military prosecutor shall, without delay, submit court records to the Minister of National Defense. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 508 (Time Limit to Issue Order of Execution of Capital Punishment) |
| (1) | An order to execute capital punishment shall be issued within six months from the date a judgment becomes final. |
| (2) | When a request for the recovery of a right to appeal, retrial or extraordinary appeal to the Supreme Court has been made, the time taken for the completion of such procedures shall not be counted in the period prescribed in paragraph (1). |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 509 (Time to Execute Capital Punishment) |
Capital punishment shall be executed within five days from the time the Minister of National Defense issues an order.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 510 (Attendance at Execution of Capital Punishment) |
| (1) | The military prosecutor, prosecution clerk, medical officer and prison warden or a person who stands in for warden shall attend the execution of capital punishment. <Amended on Jan. 6, 2016> |
| (2) | No person shall enter a place where capital punishment is to be executed without the permission of the military prosecutor or prison warden. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 511 (Protocol of Execution of Capital Punishment) |
A prosecution clerk who has attended at the execution of capital punishment shall prepare a protocol of execution, and affix name and seal or sign thereon together with the military prosecutor, medical officer and prison warden or a person who stands in for warden. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 512 (Suspension of Execution of Capital Punishment) |
| (1) | If the person who has been sentenced to capital punishment lacks mental capacity due to a mental disorder, or is a pregnant woman, the execution of capital punishment shall be suspended by order of the Minister of National Defense. |
| (2) | Where the execution of capital punishment has been suspended pursuant to paragraph (1), capital punishment shall be executed by order of the Minister of National Defense after the condemned criminal recovers from his/her mental disorder or gives birth to a baby. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 513 (Suspension of Execution of Deprivation of Liberty) |
| (1) | If a person who has been sentenced to imprisonment with or without labor or misdemeanor imprisonment lacks mental capacity due to a mental disorder, the execution of punishment shall be suspended under the direction of the military prosecutor of a unit in which the military court that has sentenced such punishment is established or the military prosecutor of the Military Prosecutors’ Office having jurisdiction over the present domicile of such person: Provided, That where several military prosecutors’ offices having jurisdiction over the present domicile of the person who has been sentenced to imprisonment exist, the military prosecutor of the Military Prosecutors’ Office designated by the convening authority of the High Military Court shall direct the execution of punishment. <Amended on Jan. 6, 2016> |
| (2) | Where the execution of punishment has been suspended pursuant to paragraph (1), the military prosecutor may transfer the person who was sentenced to punishment to a manager responsible for care and custody, local government, or head of a military hospital and have such person held in such facilities. <Amended on Jan. 6, 2016> |
| (3) | A person for whom the execution of punishment has been suspended shall be detained in the prison until the disposition prescribed in paragraph (2) is conducted and such period shall be counted in the term of punishment. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 514 (Suspension of Execution of Deprivation of Liberty) |
| (1) | If a person who has been sentenced to imprisonment with or without labor or misdemeanor imprisonment has any of the following reasons, the execution of punishment may be suspended under the direction of the military prosecutor of a unit in which the military court that has sentenced such punishment is established or the military prosecutor of the Military Prosecutors’ Office having jurisdiction over the present address of such person: <Amended on Jan. 6, 2016> |
| 1. | When the health of such person is likely to be seriously damaged due to the execution of punishment or it is feared that such person can hardly survive the execution of punishment; |
| 2. | When such person is 70 years of age or older; |
| 3. | When such person has been pregnant for six months or more; |
| 4. | When 60 days have not passed after childbirth; |
| 5. | When a lineal ascendant is 70 years of age or older, or is seriously ill or physically disabled and no other relative to protect such lineal ascendant exists; |
| 6. | When a lineal descendant is a child and no other relative to protect such lineal descendant exists; |
| 7. | When other substantial grounds exist. |
| (2) | When the military prosecutor gives direction pursuant to paragraph (1), he/she shall obtain permission from the head of a unit to which he/she is attached. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 515 (Summons for Execution of Punishment) |
| (1) | When a person who has been sentenced to capital punishment, imprisonment with or without labor or misdemeanor imprisonment is not confined, the military prosecutor shall summon him/her to execute punishment: Provided, That where a person under the suspension of execution of punishment is summoned for the execution of punishment, the military prosecutor shall obtain permission from the head of a unit to which such military prosecutor is attached. <Amended on Jan. 6, 2016> |
| (2) | If a person fails to answer the summons, the military prosecutor shall issue a writ of execution of punishment and take action to apprehend such person. <Amended on Jan. 6, 2016> |
| (3) | If a person who has been sentenced to punishment flees or is likely to flee or whereabouts of such person is unknown, in cases under paragraph (1), the military prosecutor shall be allowed to issue a writ of execution of punishment and take action to apprehend such person without summoning such person. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 516 (Format for Writ of Execution of Punishment) |
The name, post, rank, service number, resident registration number, dwelling, age, name of punishment, term of punishment and other necessary matters of the person who has been sentenced to punishment shall be inserted in the writ of execution of punishment referred to in Article 515, and the military prosecutor shall sign and seal thereon. <Amended by Jan. 6, 2016> [This Article Wholly Amended on Dec. 29, 2009]
| Article 517 (Effect of Writ of Execution of Punishment) |
A writ of execution of punishment shall have the same effect as a detention warrant.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 518 (Execution of Writ of Execution of Punishment) |
The provisions concerning the detention of defendants prescribed in Section 7 of Chapter I of Part II shall apply to the execution of writ of execution of punishment under Articles 515 and 516. [This Article Wholly Amended on Dec. 29, 2009]
| Article 519 (Execution of Punishment on Qualifications) |
As for a person who has been sentenced to disqualification or suspension of qualification, such fact shall be entered in the inmate list and an inmate card shall be sent to the head of a Si (referring to a Si in which Gus are not established and an administrative city of the Special Self-Governing Province), Gu, Eup, Myeon (referring to the head of a Si or Gu in cases of a Dong, and to the head of a Eup or Myeon in cases of a Eup or Myeon in a city combined with the functions of rural and urban communities) of the place of registration and of dwelling of such person who has been sentenced to punishment.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 520 (Execution of Punishment on Property) |
| (1) | A judgment imposing a fine, minor fine, confiscation, additional collection, administrative fine or provisional payment shall be executed by order of a military prosecutor. <Amended on Jan. 6, 2016> |
| (2) | If a compulsory execution is needed in regard to the execution prescribed in paragraph (1), an institution having authority to conduct compulsory execution pursuant to civil judgment shall conduct compulsory execution under the entrustment of the military prosecutor except for the cases where it is conducted in the barracks, military buildings, warships or aircraft. <Amended on Jan. 6, 2016> |
| (3) | In cases under paragraph (1), an order of the military prosecutor shall have the same effect as a title of deed with authority to execute. <Amended on Jan. 6, 2016> |
| (4) | Provisions concerning execution prescribed by the Civil Execution Act shall apply mutatis mutandis to the execution of judgment pursuant to paragraph (2); Provided, That service of a judgment before execution is not necessary. |
| (5) | Notwithstanding paragraph (4), a judgment prescribed in paragraph (1) may be executed in the same manner as default national taxes are collected in accordance with the National Tax Collection Act. |
| (6) | The military prosecutor may make examinations necessary for the execution of judgment under paragraph (1). In such cases, Article 231 (2) shall mutatis mutandis. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 521 (Execution on Inherited Property) |
Fines or additional collection adjudged as prescribed by statutes concerning confiscation, taxation, government monopoly or other public imposts may be executed on the inherited property if the person adjudged as such dies after such judgment became final.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 522 (Coordination of Provisional Payments) |
If a judgment of provisional payment in the court of second instance exists after the provisional payment in the court of first instance has been executed, the execution of the court of first instance shall be deemed execution by the court of second instance within the extent of the amount of provisional payment in the court of second instance.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 523 (Execution of Provisional Payment and Execution of Regular Punishment) |
Where a judgment of fines, minor fines or additional collection has become final after the judgment of provisional payment was executed, punishment shall be deemed to have been executed within the extent of such amount.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 524 (Inclusion of Days under Confinement before Conclusion of Judgment) |
| (1) | The total number of days under confinement after pronouncement of judgment and before conclusion of judgment (including the number of days under confinement on the day of pronouncement of judgment) shall be included in the term of regular punishment. <Amended on Jun. 9, 2020> |
| (2) | Deleted. <Jun. 9, 2020> |
| (3) | The total number of days under confinement during the period of service of documents or immediate appeal as at the time of dismissing an appeal shall be included in the term of regular punishment. |
| (4) | In cases under paragraphs (1) and (3), one day under confinement shall be calculated as one day in the term of punishment or one day in the term of custody to be served instead of a fine or minor fine. <Amended on Jun. 9, 2020> |
| (5) | Deleted. <Jun. 9, 2020> |
[This Article Wholly Amended on Dec. 29, 2009]
[Title Amended on Jun. 9, 2020]
| Article 525 (Disposal of Confiscated Articles) |
Confiscated articles shall be disposed of by the military prosecutor. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 526 (Delivery of Confiscated Articles) |
| (1) | Where a person having a lawful right to confiscated articles requests the delivery of the confiscated articles within three months after confiscation was executed, the military prosecutor shall deliver the confiscated articles unless it is to be destroyed or scrapped. <Amended on Jan. 6, 2016> |
| (2) | Where the military prosecutor has received a request prescribed in paragraph (1) after he/she disposed of confiscated articles, the military prosecutor shall deliver proceeds from the public sale. <Amended on Jan. 6, 2016> |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 527 (Indication of Forgery, etc.) |
| (1) | Where forged or altered articles is to be returned, forgery or alteration shall be marked on all or part of such article. |
| (2) | Where forged or altered article has not been confiscated, the military prosecutor shall have the relevant person submit such article and conduct disposition prescribed in paragraph (1): Provided, That where such property belongs to a government office, the military prosecutor shall notify the government office that such property has been forged or altered, and have the government office dispose of such properties appropriately. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 528 (Being Impossible to Return and Announcement) |
| (1) | Where it is impossible to return seized articles to a person to whom seized articles is to be returned because whereabouts of such person is unknown or other reasons exist, the military prosecutor shall announce such reasons in the Official Gazette. <Amended on Jan. 6, 2016> |
| (2) | If no request for return is made within three months after announcement, such article shall devolve on the National Treasury. |
| (3) | Even during the period prescribed in paragraph (2), worthless articles may be scrapped, and those impractical to keep may be put to public sale and proceeds therefrom may be kept. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 529 (Raising Doubt) |
If a person sentenced to punishment doubts the interpretation of judgment concerning execution, he/she may raise such doubt to the military court that has pronounced such sentence.
[This Article Wholly Amended on Dec. 29, 2009]
| Article 530 (Raising Objection) |
A person on whom judgment is executed, or legal representative or spouse thereof may raise an objection to the military court that has pronounced such sentence on the grounds that disposition of the military prosecutor concerning execution is unreasonable. <Amended on Jan. 6, 2016>
[This Article Wholly Amended on Dec. 29, 2009]
| Article 531 (Withdrawal of Claims) |
| (1) | Claims under Articles 529 and 530 may be withdrawn by no later than the time the military court renders a ruling. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 532 (Ruling on Claims) |
If a doubt or objection is raised pursuant to Articles 529 and 530, the military court shall render a ruling. [This Article Wholly Amended on Dec. 29, 2009]
| Article 533 (Execution of Custody in Prison Workshop) |
The provisions concerning the execution of punishment shall apply mutatis mutandis to the execution of custody in a prison workshop for persons who fails to fully pay a fine or minor fine.
[This Article Wholly Amended on Dec. 29, 2009]
PART V SPECIAL CASES IN TIME OF WAR OR EMERGENCY
| Article 534 (Provisions of Special Cases) |
None of the provisions concerning appeal prescribed in Chapter III of Part II shall not apply to any of the following persons in an area over which extraordinary martial law has been proclaimed: Provided, That this shall not apply where capital punishment has been sentenced:
| 5. | Persons who have committed a crime prescribed in Articles 87 through 90 and persons who have attempted to commit such crime. |
[This Article Wholly Amended on Dec. 29, 2009]
| Article 535 (Right to Action of Convening Authority) |
| (1) | When judgment prescribed in Article 534 is executed, confirmation shall be obtained from the convening authority of the relevant military court. |
| (2) | The confirmation prescribed in paragraph (1) shall be performed after examining the relevant court records; and where reasons exist to recognize that the sentencing is too heavy, such sentence may be mitigated or the execution of such sentence may be exempted. |
[This Article Wholly Amended on Dec. 29, 2009]
PART VI SUPPLEMENTARY PROVISIONS
| Article 536 (Provisions to be Applied mutatis mutandis) |
The Criminal Procedure Costs Act shall apply mutatis mutandis to the payment of daily allowances, travel expenses and other remuneration to the public defender, witness, expert witness and interpreter. [This Article Wholly Amended on Dec. 29, 2009]
ADDENDA <Act No. 3993, Dec. 4, 1987>
Article 1 (Enforcement Date)
This Act shall enter into force on February 25, 1988.
Article 2 (Transitional Measures)
| (1) | The court-martial, court-martial convening authority, court-martial adjudicator, officer of the court, military prosecutor, court-martial clerk, prosecution clerk, interpreter and engineer prescribed by the previous Court-Martial Act as at the time this Act enters into force shall be deemed the military court, military court convening authority, military court adjudicator, military judge, military prosecutor, military court clerk, prosecution clerk, interpreter and engineer prescribed by this Act. |
| (2) | This Act shall apply to cases pending in court-martial or the Supreme Court, or cases which have already become final and conclusive in the court-martial or the Supreme Court at the time this Act enters into force: Provided, That in cases of litigation already conducted, this Act shall not have effect thereon. |
| (3) | The previous provisions shall apply to the period of delivery of documents by public announcement that has already commenced as at the time this Act enters into force. |
| (4) | The disposition already conducted by the court-martial convening authority at the time this Act enters into force shall be deemed to have been conducted by the military court convening authority prescribed by this Act. |
| (5) | The disposition already conducted by the military prosecutor of court-martial as at the time this Act enters into force shall be deemed to have been conducted by the military prosecutor of military court. |
| (6) | The military court convening authority may have service members perform the duties of military court clerks and military prosecution clerks until military court clerks and military prosecution clerk are supplemented. |
Article 3 Omitted.
Article 4 (Relationship with other Statutes)
Where the Court-Martial Act, court-martial and officer of the court have been cited by other statutes except for the Acts amended as prescribed by Article 3 of the Addenda as at the time this Act enters into force, the Military Court Act, military court and military judge shall be deemed cited respectively in place of the aforementioned terminology.
ADDENDA <Act No. 4616, Dec. 27, 1993>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
Articles 2 through 4 Omitted.
ADDENDA <Act No. 4704, Jan. 5, 1994>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 1994.
Article 2 (Transitional Measures)
| (1) | This Act shall apply to the cases pending in court-martial or the Supreme Court as at the time this Act enters into force: Provided, That in cases of litigation already conducted or of disposition already conducted by the military prosecutor or convening authority, this Act shall not have effect thereon. |
| (2) | The cases pending in the High Court of each military branch at the time this Act enters into force shall be deemed pending in the High Military Court prescribed by this Act. |
| (3) | The military prosecutors, Military Prosecutors’ Office clerks and military court clerks at the time this Act enters into force shall be deemed to have been appointed by the Minister of National Defense or the Chiefs of Staff of each military branch as prescribed by this Act. |
Article 3 Omitted.
Article 4 (Relationship with other Statutes)
Where the military prosecutors of military court have been cited by other statutes as at the time this Act enters into force, the military prosecutors of the Military Prosecutors’ Office shall be deemed to have been cited.
ADDENDA <Act No. 5681, Jan. 21, 1999>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 through 4 Omitted.
ADDENDA <Act No. 6037, Dec. 28, 1999>
| (1) | (Enforcement Date) This Act shall enter into force on May 1, 2000. |
| (2) | (Transitional Measures) This Act shall apply to cases pending in the military court or the Supreme Court as at the time this Act enters into force: Provided, That in cases of litigation conducted pursuant to the previous provisions before this Act enters into force, this Act shall not have effect thereon. |
ADDENDA <Act No. 6082, Dec. 31, 1999>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 through 4 Omitted.
ADDENDA <Act No. 6290, Oct. 26, 2000>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
Articles 2 through 4 Omitted.
ADDENDA <Act No. 6627, Jan. 26, 2002>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2002.
Articles 2 through 7 Omitted.
ADDENDA <Act No. 7078, Jan. 20, 2004>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 and 3 Omitted.
ADDENDA <Act No. 7229, Oct. 16, 2004>
| (1) | (Enforcement Date) This Act shall enter into force on the date of its promulgation. |
| (2) | (Transitional Measures concerning Taking Suspect to Relevant Agency by Military Judicial Police Officer) The suspect detained by a military judicial police officer with leave to the extended period of the defendant as at the time this Act enters into force shall be immediately taken to the military prosecutor. |
ADDENDA <Act No. 7289, Dec. 31, 2004>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA <Act No. 7427, Mar. 31, 2005>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 7 Omitted.
ADDENDA <Act No. 8435, May 17, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2008. (Proviso Omitted.)
Articles 2 through 8 Omitted.
ADDENDA <Act No. 8842, Jan. 17, 2008>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That the amended provisions of Articles 87-3, 236-2 and 206-2 shall enter into force two years after the date of its promulgation. Article 2 (General Transitional Measures)
This Act shall apply even to cases under investigation or pending in the military court as at the time this Act enters into force: Provided, That in cases of acts conducted pursuant to the previous provisions before this Act enters into force, this Act shall not have effect thereon.
Article 3 (Transitional Measures concerning Period of Detention)
| (1) | The amended provisions of Article 132 (2) shall begin to apply to the first appeal case lodged after this Act enters into force. |
| (2) | The amended provisions of Article 132 (3) shall begin to apply where a defendant is under arrest, is taken to the court or is confined before public prosecution is lodged for the first time after this Act enters into force. |
Article 4 (Transitional Measures concerning Administrative Fines, etc.)
The amended provisions of Article 193 shall begin to apply to the first case where a witness who has been served with a summons fail to appear before the military court after this Act enters into force. Article 5 (Applicability concerning Assuming Court Costs)
The amended provisions prescribed in Section 14 of Chapter 1 of Part 2 shall begin to apply to the first case of which public prosecution is lodged after this Act enters into force.
Article 6 (Transitional Measures concerning Statute of Limitations)
The previous provisions shall apply to an offense committed before this Act enters into force.
Article 7 (Applicability concerning Cases of Application for Adjudication)
| (1) | The amended provisions concerning applications for adjudication prescribed by this Act shall apply to the first case of which disposition not to institute public prosecution has been issued after this Act enters into force. |
| (2) | The previous provisions shall apply to a case for which an application for adjudication has been filed with the head of a unit to which the military prosecutor is posted before this Act enters into force. |
Article 8 (Transitional Measures concerning Appeals to Supreme Court, etc.)
The previous provisions shall apply to cases for which an appeal or re-complaint has been filed with the Supreme Court before this Act enters into force.
Article 9 Omitted.
ADDENDA <Act No. 9765, Jun. 9, 2009>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2010. (Proviso Omitted.)
Articles 2 through 7 Omitted.
ADDENDA <Act No. 9841, Dec. 29, 2009>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation: Provided, That matters concerning Article 87-3 among the amended provisions of Article 238-2 (10) shall enter into force on January 18, 2010. Article 2 (Repeal of other Acts)
Article 3 (Transitional Measures concerning Dispute over Jurisdiction)
Where adjudication on a dispute over jurisdiction is under way as prescribed by the previous Jurisdiction of Military Courts Act as at the time this Act enters into force, the previous provisions shall apply, however, where adjudication on jurisdiction has been determined, it shall be deemed to have been determined as prescribed by this Act. Article 4 (General Transitional Measures)
This Act shall apply even to cases under investigation or pending in the military court as at the time this Act enters into force: Provided, That in cases of acts performed as prescribed by the previous provisions before this Act enters into force, this Act shall not have effect thereon.
ADDENDA <Act No. 11002, Aug. 4, 2011>
Article 1 (Enforcement Date)
This Act shall enter into force one year after the date of its promulgation.
Articles 2 through 7 Omitted.
ADDENDA <Act No. 11572, Dec. 18, 2012>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 10 Omitted.
ADDENDA <Act No. 11731, Apr. 5, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 and 3 Omitted.
ADDENDA <Act No. 12199, Jan. 7, 2014>
Article 1 (Enforcement Date)
This Act shall enter into force on six months after the date of its promulgation: Provided, That the amended provisions of Article 309-16 (2) shall enter into force on the date of its promulgation; and matters concerning perusal and copy of judgment documents, etc. by electronic ways, such as internet or other computing information processing systems, among ways to peruse and copy judgment documents, etc. pursuant to the amended provisions of the main sentence of Article 93-3 (1) and paragraph (2) of the same Article shall enter in to force on March 1, 2016. Article 2 (Applicability to Perusal and Copy of Judgment Documents, etc.)
The amended provisions of Article 93-3 shall apply, beginning with the first judgment document, etc. in which the judgement of a case becomes final, after this Act enters into force.
ADDENDA <Act No. 13126, Feb. 3, 2015>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Applicability etc., concerning Changes in Jurisdiction)
The amended provisions of Article 2 (1) 1 shall be applied to cases under investigation or pending in a military court as at the time this Act enters into force: Provided, That in cases of acts performed under the previous provisions before this Act enters into force, this Act shall not affect the effect of such acts.
ADDENDA <Act No. 13722, Jan. 6, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force one year and six months after the date of its promulgation: Provided, That the amended provisions of Article 295-2 shall enter into force on the date of its promulgation. Article 2 (Applicability concerning Cases of Application for Adjudication)
The amended provisions of Articles 304 (4) and 305 (1) shall begin to apply from the first case where an application for adjudication is submitted to the head of a unit to which the military prosecutor belongs, pursuant to the amended provisions of Article 301 (2) after this Act enters into force. Article 3 (Special Cases concerning Term of Office of Military Judges)
The Minister of National Defense may otherwise determine the term of office in the amended provisions of Article 23 (4) within the extent of not less than one year but not less than three years for five years after the amended provisions of the above-mentioned Article enters into force, in consideration of grounds prescribed by Presidential Decree, such as manpower supply and demand. Article 4 (Transitional Measure concerning Cases Pending Trial)
The cases pending trial in any such general military courts as are abolished pursuant to the amended provisions of Article 6 (2) at the time this Act enters into force shall be deemed transferred to the general military courts to be established in the units or agencies (referring to units or agencies higher than the units or agencies in which an abolished general military court was established, among units and agencies to be established in general military court pursuant to the amended provisions of Article 6 (2)). Provided, That acts of litigation already conducted at the time this Act enters into force shall not be affected. Article 5 (Transitional Measures concerning Names of Real Estate Investment Trusts)
The Korea Tax Institute shall be construed as the Korea Institute of Public Finance at the time this Act enters into force.
Article 6 (Transitional Measure concerning Appointment of Military Judges)
The appointment and designation of military judges and adjudicators who are not higher than field-grade officer at the time this Act enters into force shall become ineffective: Provided, That acts of litigation already conducted at the time this Act enters into force shall not be affected.
Article 7 (Transitional Measure concerning Exclusion from Application of Prescription of Public Prosecution)
The amended provisions of Article 295-2 shall also apply to a crime committed before such amended provisions enter into force, the prescription of public prosecution of which has not been completed yet. Article 8 (Transitional Measure concerning Measures of Confirming Judgements Taken by Convening Authority)
Notwithstanding the amended provisions of Article 379, the crimes committed before this Act enters into force shall be governed by the former provisions thereof. Article 9 Omitted.
Article 10 (Relationship with other Statutes)
Where the prosecutors have been cited by other Act as at the time this Act enters into force, the military prosecutors shall be deemed to have been cited.
ADDENDA <Act No. 14609, Mar. 21, 2017>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation. (Proviso Omitted.)
Articles 2 and 3 Omitted.
ADDENDA <Act No. 15165, Jun. 12, 2017>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
Article 2 (Applicability concerning Admissibility of Evidence of Statements, Etc.)
The amended provisions of the main sentences of Articles 366 and 367 shall apply, beginning with the first case for which public prosecution is instituted, after this Act enters into force.
ADDENDA <Act No. 15983, Dec. 18, 2018>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That the amendments to the attached Table shall enter into force on January 1, 2019.
Article 2 (Applicability to Signature)
The amended provisions of Articles 93 and 107 shall begin to apply from the first document prepared in accordance with this Act by a person who is not a public official or the first writ of summons issued by a military court to a defendant. Article 3 (Transitional Measures concerning Jurisdiction over Cases)
Cases pending in a general military court of the First ROK Army Command and a general military court of the Third ROK Army Command as at the time this Act enters into force shall be deemed pending in a general military court of the Ground Operations Command under this Act.
ADDENDA <Act No. 16926, Feb. 4, 2020>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Applicability to Time Limit to Lodge Immediate Complaints and Quasi-Complaints)
The amended provisions of Article 455 and 465 (3) shall also apply where the time limit to lodge an immediate complaint and quasi-complaint under previous provisions has not passed as at the time this Act enters into force.
ADDENDA <Act No. 17367, Jun. 9, 2020>
Article 1 (Enforcement Date)
This Article shall enter into force six months after the date of its promulgation.
Article 2 (Applicability to Period of Request for Compensation)
The amended provisions of Article 227-12 (2) shall apply, beginning with the first judgment of acquittal which became final and conclusive after this Act enters into force. Article 3 (Applicability to Deadline for Application for Adjudication)
The amended provisions of Article 301 (2) shall apply, beginning with the cases where a notice is given pursuant to Article 299 (1) after this Act enters into force. Article 4 (Applicability to Delivery of Court Records, etc.)
The amended provisions of Article 460 (3) shall apply, beginning with the first complaint case lodged after this Act enters into force. Article 5 (Transitional Measures concerning Period of Prescription of Public Prosecution)
Notwithstanding the amended provisions of Article 291, the previous provisions shall apply to the prescription of a public prosecution of a crime committed before this Act enters into force.