—Woongjae Kim, Assistant Professor, Seoul University School of Law
Introduction: The Martial Law Crisis and Its Aftermath
On December 3, 2024, President Yoon Suk Yeol of South Korea shocked the nation by suddenly declaring martial law. The declaration was immediately followed by a martial law decree that prohibited all political activity, including the activities of the National Assembly. Members and staff of the National Assembly, defiant and undeterred, scrambled to hold an emergency session to vote against the imposition of martial law. The President tried to thwart the lawmakers by force: police officers blockaded the National Assembly building to keep members out, while armed military troops broke into the building to remove those who were inside. Clashes and chaos ensued, but enough members managed – some climbing over walls to get in, others setting up barricades and spraying fire extinguishers to push soldiers out – to convene inside the main chamber. They voted 190-0 to demand the President lift martial law. After a few hours, President Yoon eventually backed down and accepted their demand.
The moment Yoon’s ill-fated martial law came to an end, efforts to hold him accountable began. The National Assembly, spearheaded by the members of the opposition and joined by a few from Yoon’s own party, voted to impeach the President, initiating impeachment proceedings in which the Constitutional Court would ultimately decide whether to remove him from office. Multiple investigative agencies launched criminal investigations – for insurrection and abuse of power – against Yoon and other high-ranking officials who played key roles. Dramatic scenes unfolded: investigators armed with a court-issued warrant attempted to arrest Yoon at his residence; the President’s security forces refusing the investigators entry, leading to a six-hour standoff forcing the investigators to retreat (they were eventually able to take Yoon into custody in a second attempt a week later); an angry mob of Yoon’s supporters attacking the courthouse where his detainment was determined.
While being impeached from the nation’s highest administrative office is no small matter, criminal liability might prove to be the greater threat for Yoon. Insurrection is one of the most serious offenses in the South Korean Criminal Code; the penalty prescribed for the leader of an insurrection is either death or indefinite imprisonment (In other words, the minimum sentence is life in prison).[1] Although judges have broad discretion to mitigate any legally prescribed sentence by one level, even with mitigation, Yoon would still face a minimum of 10 years in prison.[2] The severity of the potential penalty partly explains Yoon’s “by-any-means-necessary” approach to fighting the ongoing criminal investigation. It also suggests that Yoon’s case will be a lengthy and contentious one. The legal issues raised by Yoon and his lawyers will ultimately have to be resolved in court, presumably by the Supreme Court of Korea (as Yoon is expected to exhaust his appeals). In the meantime, it is important to explore the key legal issues surrounding Yoon’s criminal liability, as they will shape the course of his case.
The Case for Criminal Liability for Insurrection
The most fundamental issue is whether Yoon’s actions on December 3 constitute the crime of insurrection. Article 87 of the Criminal Code of Korea defines insurrection as “rioting for the purpose of (1) excluding national power from all or part of the territory of the Republic of Korea or (2) subverting the Constitution.” A “riot” is interpreted as the use of violence or threats by a crowd; the violence or threats must reach a level sufficient to disturb the peace of an area. Regarding the purpose element, as Yoon was not attempting to seize territorial control from the government, the pertinent part is “the purpose of . . . subverting the Constitution.” Article 91 further defines this purpose as aiming to either “extinguish the function of the Constitution or statutes without observing the procedures provided by the Constitution or statutes” or “overthrow a government institution established by the Constitution by force or rendering the exercise of its function impossible by force.”
It seems more than likely that Yoon’s actions meet the definition of insurrection. On December 3, Yoon sent police units and armed military troops to the National Assembly building. Reports indicate that more than 1,500 police officers and more than 200 soldiers were deployed. The police actively blockaded the building, and the soldiers forced their way inside by breaking windows. Few could dispute that these actions amount to the use of violence sufficient to disturb the peace of an area. It seems equally indisputable that Yoon acted with “the purpose of subverting the Constitution.” The goal of Yoon was to stop the National Assembly, a government institution established by the Constitution, from convening and voting against martial law – a function explicitly granted to the National Assembly by the Constitution.[3] Thus, his purpose was to render, by force, the Assembly’s exercise of its function impossible.
A Supreme Court precedent supports this conclusion. In a 1997 case involving former Presidents Chun Doo-hwan and Roh Tae-woo, the Supreme Court of Korea held that the act of declaring a nationwide extension of emergency martial law, because martial law entailed enforcing restrictions on other government institutions, constituted the “riot” element of insurrection.[4] If the declaration of martial law by itself can constitute insurrection, declaring martial law and then sending police and military to further enforce it surely can also fit the definition. In fact, investigators have multiple options for building the case against Yoon: they could rely on the 1997 precedent and argue that President Yoon’s declaration of martial law by itself amounted to insurrection; they could point to the concrete use of violence demonstrated by police officers and soldiers as acts of insurrection (this would likely be the easier path); or they could argue that the declaration of martial law and the subsequent concrete violent acts all formed parts of a riot, thus constituting insurrection as a whole. Regardless of the theory chosen, investigators seem to have a strong case.
President Yoon’s Defense: Immunity, Justification, and Mistake in Law
President Yoon and his lawyers are arguing that his actions of December 3 cannot be subject to criminal prosecution because they constitute a highly political act that falls outside the boundaries of judicial review. This argument is not new; It is based on what is called “government action theory,” which posits that some government actions are of such political nature that it cannot be subjected to judicial review.[5] This theory, however, is largely rejected by scholars; and those who do endorse it take pains to emphasize that its applicability must be restricted to only the most extraordinary cases. The courts have also demonstrated a restrictive attitude toward the theory. Since the end of authoritarian rule in the late 1980s, the courts’ endorsement of government action theory has remained only on the theoretical level: There has been no instance, particularly when a major criminal act is involved, where the Supreme Court has refused to hear a case based on this theory. The prime example is the aforementioned 1997 insurrection case of former Presidents Chun and Roh. In that case, Chun and Roh had made an argument of non-justiciability based on government action theory, mirroring the arguments made by Yoon. However, the Supreme Court, while acknowledging the theoretical possibility of certain government actions being non-justiciable, declined to accept the former Presidents’ argument and ultimately convicted them both. The reluctance to endorse this theory, mutually shared by scholars and practitioners, is likely informed by lessons from recent history. Koreans still vividly remember the abuses committed in the name of “government action” during the authoritarian regimes of the 1960s through the 1980s. The dangers posed by unchecked administrative power remain a stark reminder of the need for judicial oversight. Perhaps Yoon and his lawyers believe that their argument has been bolstered by the recent U.S. Supreme Court decision of Trump v. United States. Yoon’s lawyers referenced this decision in their impeachment proceedings brief, where the U.S. Supreme Court granted broad immunity from criminal prosecution to official acts of a President.[6] However, given South Korea’s historical context, there is little reason to believe that its courts will broaden the scope of non-justiciable government actions or grant presidential acts sweeping immunity comparable to their U.S. counterpart.
So far, Yoon and his lawyers have focused primarily on claiming immunity from judicial review. However, they may present other arguments to avoid criminal liability. For one, Yoon could argue that even if his actions on their face fulfill the elements of insurrection, they are justifiable because he had lawfully exercised the Presidential authority duly granted to him by the Constitution. Article 20 of the Korean Criminal Code provides a defense of justification for acts conducted in accordance with the law: a public official acting lawfully within legal authority, even if the act fits the definition of a criminal offense, is not criminally liable. If Yoon were to raise this defense, the issue would be whether his actions on December 3 were indeed lawful – that is, whether they met all the substantive and procedural requirements prescribed by law. Demonstrating this would be a tall task for Yoon. The Constitution authorizes the President to declare martial law only in times of war, armed conflict, or similar national emergencies – to argue South Korea was in such a situation on December 3, 2024 would be an extreme overreach, if not flat-out wrong. Moreover, both the Constitution and the Martial Law Act clearly indicate that the President cannot suspend the function of the National Assembly with a martial law declaration. However, it seems that Yoon’s main objective in declaring martial law was precisely to prevent the National Assembly from functioning.
Yoon could also argue that even if his actions failed to meet legal requirements, he sincerely believed that they did. He would be raising a defense of mistake in law, as he would not have been mistaken about the facts involved, but only about whether the facts fulfill the legally prescribed requirements. Under the Korean Criminal Code, a mistake in law can be a valid excuse for a crime if reasonable grounds for the mistake exist.[7] However, the chances of this defense succeeding also seems slim. The requirements set out in the Constitution and the Martial Law Act are far from ambiguous. As a former prosecutor and legal expert, Yoon is more than capable of correctly interpreting the law. Furthermore, nothing suggests that the President was misled by an otherwise trustworthy source. Finally, the Korean courts have historically set a notoriously high standard for the “reasonable grounds” required for an excusable mistake in law.
Jurisdictional Disputes: Caught in a Power Struggle Among Investigative Agencies
Another contentious issue is whether the Corruption Investigation Office for High-ranking Officials (CIO), which is conducting the investigation against Yoon, has jurisdiction over the case. Yoon and his lawyers are arguing that the CIO lacks the legal authority to investigate the charges, rendering any investigative measure it takes unlawful and invalid. On these grounds, Yoon has steadfastly refused to cooperate with the investigation: he ignored a summons for questioning issued by the CIO and resisted arrest, claiming that the warrant was invalid because it was issued at the CIO’s request.
The controversy over the CIO’s investigative jurisdiction arises from the unique structure of South Korea’s criminal justice system that allocates investigative authority among several agencies. This structure is the result of recent reforms aimed at addressing criticisms of the Prosecutor’s Office (PO). Traditionally, the authority to investigate crime was shared by the PO and the police. While both agencies could initiate and conduct investigations for any crime, prosecutors wielded greater authority: prosecutors had the authority to supervise police investigations; only prosecutors had the authority to make indictment and non-indictment decisions; and importantly, only prosecutors were authorized to file an application for a warrant – a police investigator wishing to use compulsory measures such as arrest or search and seizure had to request that a prosecutor apply for a warrant (the issuance of which, of course, will ultimately be up to a judge).
The two agencies had long been engaged in a power struggle, with the police pushing to have their authority expanded and the prosecutors refusing to relinquish theirs. Added to the battle between the agencies was the growing criticism that prosecutors held too much power within the criminal justice system. Critics argued that the concentration of unchecked power had led to abuses, including politically motivated investigations, which, in turn, had resulted in the prosecutors wielding outsized political influence. To the critics, South Korea had become a “Republic of Prosecutors.”[8] These critical views were largely shared by members of the Democratic party (the current opposition), and major reforms were implemented during the previous administration when the Democratic party controlled both the presidency and the parliament. Prosecutors were stripped of the authority to initiate investigations for all but a few specified offenses and lost their supervisory authority over police investigations (though they retained the exclusive authority to file for warrants). Meanwhile, the police retained their authority to initiate investigations for any crime and gained the ability to make non-indictment decisions. Additionally, a new agency tasked with investigating the crimes of high-ranking officials including prosecutors, police officers, and judges – the CIO – was created.
While the lawmakers probably had good intentions of devising a checks-and-balance system by allocating investigative authority to multiple agencies, the reform has greatly complicated the investigative stage of criminal procedure. Before the reform, criminal investigation followed a relatively straightforward process. For most cases, police initiated and conducted the investigation and transferred the case to the prosecutors; then prosecutors carried out additional investigations as needed and decided whether to indict the suspect. For some cases, prosecutors would initiate the investigation directly and handle the case throughout. Things are much more complex under the reformed regime. Police can initiate investigations for all crimes; prosecutors, on the other hand, can only initiate investigations for certain prescribed offenses.[9] The police do not have the authority to indict suspects but can decide not to indict. The prosecutors have the authority to make both indictment and non-indictment decisions for all crimes. The newly created CIO has the authority to initiate and conduct investigations only for a limited number of offenses committed by certain high-ranking officials and their family members.[10] However, the CIO’s authority to make indictment decisions is further limited to crimes committed by prosecutors, judges, and police officers.[11] The investigative jurisdiction of prosecutors and the CIO, while limited to certain prescribed offenses, can be expanded to cover “related offenses” of the prescribed offenses;[12] but the contours of “related offenses” are not always clear. This ambiguity creates leeway for aggressive agencies to stretch the limits of their authority and claim jurisdiction over important cases; it also provides the accused with grounds to question the agency’s authority and challenge the legality of the investigation – which is precisely what happened in Yoon’s case.
Almost immediately after the events of December 3, all three investigative agencies – the Police, the PO, and the CIO – rushed to claim jurisdiction over President Yoon and others involved. It was evident that the most important criminal allegation was insurrection; less clear was whether these agencies had the authority to investigate that allegation. Insurrection is not one of the prescribed offenses for which prosecutors or the CIO were authorized to initiate an investigation. Therefore, in principle, only the police had legal authority to launch the investigation into Yoon’s insurrection charges. The prosecutors would have to wait for the police to conclude the initial investigation and transfer the case to them. The CIO’s authority was even more limited, as it not only lacked the authority to investigate insurrection charges but also, unlike the PO, lacked the authority to indict those charges.
Both the PO and the CIO tried to work around this problem by relying on the extension of authority over “related offenses.” The CIO argued that the actions of Yoon and other high-ranking officials on December 3 also constituted the offense of abuse of power,[13] for which the CIO has investigative authority;[14] because it had jurisdiction over the offense of abuse of power committed by Yoon and others, it also had jurisdiction over the offense of insurrection they committed as a “related offense” to abuse of power. The PO made the same argument using abuse of power (over which the prosecutors also have investigative authority)[15] as the jurisdictional hook, but added another ground for its claim of jurisdiction: the PO asserted that because it has authority to initiate an investigation over all crimes committed by a police officer (a power prescribed in law as a check on the potential conflicts of interest when the police investigate one of their own),[16] it has investigative jurisdiction over the Chief of Police, who was involved as a co-perpetrator of the December 3 insurrection. Thus, the PO claimed, Yoon’s act of insurrection also falls under the PO’s jurisdiction as a “related offense” to the police chief’s insurrection.
These theories of jurisdiction, as a matter of law, are probably valid. Courts have received applications for warrants from both agencies and have issued them, indicating that courts are willing to accept these theories and acknowledge the investigative jurisdiction of the agencies. However, it is also true that the agencies’ claims for jurisdiction involve significant legal maneuvering, and one cannot shake off the uneasy feeling that the tail (abuse of power/the police chief) is wagging the dog (insurrection/the President). That uneasiness is what Yoon and his lawyers have latched onto in mounting their defense. The investigative agencies are certainly taking a risk by relying on a novel legal theory, and it is a big risk: if the claims of jurisdiction fail, the entire investigative process will have been unlawful, and all evidence will have been illegally obtained and thus inadmissible.[17]
An outside observer, exasperated by the legal technicalities involved, might wonder: Wouldn’t all this controversy disappear if all three agencies united forces to form a joint investigative operation? It most certainly would; and attempts at such coordination have taken place, only to fail. Currently, the police and the CIO have set up a joint investigation but have refused the PO’s offer to participate. What prevents them from joining forces seems to be nothing but the power struggle between the agencies: The CIO, with no meaningful results to show in its three years of existence, seems to think this as a golden opportunity to make its presence felt and prove its worth; prosecutors, facing efforts by lawmakers to further curtail their powers, seem to consider this as a chance to demonstrate their institutional capabilities and push back; and the police seem to be trying to move out of the prosecutors’ shadow and establish themselves as an independent investigative agency.
Another solution to the jurisdiction controversy would be to appoint a special counsel, by legislation, with exclusive or overriding authority to investigate and indict the crimes surrounding the events of December 3. Bills to that effect have been proposed, but so far none has managed to pass the deep political divide.
As a result, the dispute over investigative authority continues to cast a cloud over the investigation against Yoon. It is truly unfortunate that competing interests among agencies and politicians are adding a layer of uncertainty to this critical pursuit for justice.
Conclusion
The events of December 3 have posed an unprecedented challenge to South Korean democracy. The criminal justice system has been thrust into the helm as Korea tries to navigate its way forward. Determining the extent of criminal responsibility for the President and others involved is just one of many difficult problems Koreans must resolve, but addressing it justly and effectively will be critical to overcoming the crisis. Reaching the right conclusions will lay a firm foundation – the foundation of justice – for restoring and strengthening South Korea’s democracy.
Suggested citation: Woongjae Kim, Symposium on South Korea’s Martial Law Declaration Part 2: Holding the President Criminally Responsible for Insurrection, Int’l J. Const. L. Blog, Jan. 27, 2025, at: http://www.iconnectblog.com/symposium-on-south-koreas-martial-law-declaration-part-2-holding-the-president-criminally-responsible-for-insurrection/
[1] Criminal Code, Art. 87.
[2] When mitigated by one level, a sentence of indeterminate imprisonment is reduced to imprisonment of 10 to 50 years. See Criminal Code, Art. 55(1)1.
[3] Constitution of the Republic of Korea, Art. 77(4).
[4] Supreme Court of Korea, 96Do3376, April 17, 1997.
[5] The theory corresponds to the “Regierungsakt” theory in Germany, the “acte de gouvernement” theory in France, and the political question doctrine in the U.S.
[6] Trump v. United States, 603 U.S. 593 (2024).
[7] Criminal Code, Art. 16.
[8] For a discussion on the subject, see Neil Chisholm, “Prosecutorial Independence Lost: How Prosecutorial Bureaucracy is Politicized in South Korea”, Emory International Law Review Vol 38. Issue 3 (2024).
[9] Prosecutors’ Office Act (PO Act), Art. 4(1)1.
[10] Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials (CIO Act), Art. 2, section 3; Art. 3(1).
[11] CIO Act, Art. 3(1).
[12] PO Act, Art. 4(1)1(c); CIO Act, Art. 2, section 4.
[13] The crime of abuse of power is defined in Article 123 of the Criminal Code as “a public official abusing his or her official authority to (1) cause a person to perform a conduct which that person does not have a legal duty to perform, or (2) obstruct a person from exercising a legally entitled right.” The theory seems to be that the various orders given out by Yoon and others on December 3 constitutes abuse of power.
[14] CIO Act, Art. 2, section 3(a).
[15] PO Act, Art. 4(1)(a).
[16] PO Act, Art. 4(1)(b).
[17] Article 308-2 of the Criminal Procedure Code of South Korea explicitly provides that illegally obtained evidence is inadmissible.
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