South Korea’s Martial Law, Outline of Civil War

Martial law is a measure in which the head of state or the head of administration, such as the president, puts the military into the private and judicial sectors in a national emergency such as war and speculation. An executive order to declare martial law is called martial law, and lifting martial law is called martial law lifting or dismissal.

It was Japan that imported this word into legal terms, and in 1882, martial law was enacted as Taejeonggwan Public Notice No. 36, which was defined as martial law, not martial law, because it was an administrative order before the enactment of the Meiji Constitution. This law was abolished in Japan, but in Korea and Taiwan, which were colonies, it remained because there were major enemies North Korea and China, respectively, and contrary to its original purpose, it has often been invoked for the purpose of purging the opposition when the existence of the regime was threatened.

In Martial law which is an English expression, Martial is derived from Mars, the military god of Roman mythology. This means ‘military-style discipline’, which means that the civilian regime or legal system is replaced by the military government or military rule. Accordingly, under martial law, the military not only has jurisdiction over administrative power including police power but also jurisdiction, but also military law applies to civilians. Furthermore, political activity is completely banned, and arrest without a warrant becomes possible.

Appearance

Civil control by representatives elected by the people is one of the fundamental principles of a modern democratic state, and military forces are strictly excluded from the position of governing or controlling the people. However, in the event of a war, an incident, or a similar emergency, extreme confusion, disturbance, and deviant behavior that cannot be controlled by ordinary public power such as the frontline police may occur, and the military can be deployed as a last resort to stabilize the political situation. This is called martial law.

The most basic form of martial law is to allow the military to maintain security, in addition to detaining and arresting civilians for military needs or policing, or allowing the head of state to take necessary measures against legislation and justice.

Matters concerning martial law in Korea are stipulated in Article 77 of the Constitution and the Martial Law, and the President decides and declares the region and date through deliberation by the State Council, and the Minister of Defense or the Minister of Public Administration and Security may propose it through the Prime Minister.

The danger of a power rush

Martial law is a system that is likely to be abused by the will of a powerful person, as was the case with the Republic of Korea during the military regime because it actively mobilizes physical force by the head of state. In the case of the Republic of Korea, the only constitutional institution that can lift martial law is the president himself and members of the National Assembly, so if the martial law army occupies the parliament building and blocks the majority of the lawmakers from gathering in one place, the process of lifting martial law will not proceed. However, since this behavior is a civil war that ignores the constitutional order, if the situation is resolved, the person declaring martial law can be charged with impeachment and rebellion. This is especially true if martial law was declared in an illegal way. Of course, those in power who declare martial law are well aware of these dangers, and it is highly likely that abused martial law will lead to dictatorship, damage to democratic order, and the exercise of citizens’ right to resist. Therefore, there is an opinion that the requirements for the invocation of martial law should be strengthened to minimize the abuse of martial law in advance, and that post-mortem punishment for abused martial law should be carried out through a comprehensive punishment legislation for state violence.

Since the requirement for declaring martial law is to be declared in emergency situations such as wartime and incident, there are cases where exhibitions and incident are deliberately made to declare martial law. This is different from the general case, and it is a type that occurs in countries at war or in countries with unstable security.

When martial law is declared, the image of the state plunges if there is no good reason. Of course, even if there are good reasons, it will decline due to security issues, but it is better than nothing.

Declaring martial law is a very rare and large event around the world. Therefore, shortly after the declaration, the incident is broadcast as a breaking news in many countries. In the past, media delivery methods were television or radio, which took some time for everyone to know, but nowadays, with technology, events are spread in almost real time.

In countries where democracy is immature not only in Korea before democratization but also in modern times, coups and dictatorships frequently abuse martial law to oppress the people. Martial law may be invoked in the area where the incident took place when a pro-democracy movement or a separation and independence movement of ethnic minorities occurs. On the other hand, in the case of developed countries with well-established democracy, despite the martial law legislation, it is considered to have become a de facto dead culture. This is due to the fact that there is no need to declare martial law unless it is in a state of extreme chaos comparable to an all-out war because power checks and security work well when democracy is well established. Therefore, the degree and duration of martial law’s issuance serve as a good measure to understand a country’s stability and level of democracy.

However, most of the subjects of martial law are the president or prime minister, not the military. In other words, the administration is a means of controlling the legislature, the administration, the media, and civil society, not the military coup. Therefore, instead of the name coup, the name ‘friendly coup’ is used. However, if martial law is prolonged, there is a possibility that government factors will be filled with military personnel.

Current regulations

Article 77[5] of the Constitution of the Republic of Korea
① The President may declare martial law as prescribed by law when it is necessary to respond to military needs or maintain public well-being as a force in war, incident, or a similar national emergency.
② Martial law shall be governed by emergency martial law and security martial law.
③ When emergency martial law is declared, special measures may be taken regarding the warrant system, freedom of press, publication, assembly, association, and authority of the government or court as prescribed by law.
④ When martial law is declared, the President shall notify the National Assembly without delay.
⑤ When the National Assembly requests the lifting of martial law with the approval of a majority of the registered members, the President shall lift it.

Martial Law of the Republic of Korea
Article 2 (Type of martial law and declaration, etc.)
① Martial law is divided into emergency martial law and security martial law.
② Emergency martial law shall be declared in order to comply with military needs or to maintain public well-being when the President is in a state of 交 with the enemy in case of war, incident, or a national emergency, or when it is remarkably difficult to perform administrative and judicial functions due to extreme disturbance (攪亂) of social order.
③ The security decree shall be declared by the President to maintain public order of well-being when the social order is disturbed in the event of war, an incident, or a national emergency equivalent thereto and it is impossible to secure security only by general administrative agencies.
④ The President may change the type, enforcement area, or martial law commander.
⑤ When the President intends to declare or change martial law, it must be deliberated by the State Council.
⑥ The Minister of Defense or the Minister of Public Administration and Security may propose the declaration of martial law to the President through the Prime Minister in the event of a reason falling under paragraph 2 or 3. <Amendment 2013. 3. 23, 2014, 11. 19, 2017, 7. 26.> [Full Story Amendment 2011. 6. 9.]

Article 4 (Notice of Declaration of martial law)
① When the President declares martial law, he/she shall notify the National Assembly (告) without delay.
② In the case of paragraph 1, when the National Assembly is closed, the President shall, without delay, request a meeting (集 meeting) from the National Assembly. [Full Story Amendment June 9, 2011]

Article 11 (Rescission of martial law)
① When the martial law situation under Article 2 (2) or (3) is restored to its normal state or the National Assembly requests the lifting of the martial law, the President shall lift the martial law without delay and publicly announce it.
② If the President intends to lift martial law pursuant to paragraph (1), it must be deliberated by the State Council.
③ The Minister of Defense or the Minister of Public Administration and Security may, when the martial law situation under Article 2 (2) or (3) is restored to its normal state, propose the lifting of martial law to the President through the Prime Minister. <Amendment 2013. 3. 23, 2014, 11. 19, 2017, 7. 26.> [Full Story Amendment June 9, 2011]

According to the constitution, martial law is divided into two types of security rules and emergency rules. Both are practical requirements for invocation when social order cannot be maintained with ordinary administrative power, especially police power. In the security rule, the martial law commander appointed by the president has judicial/administrative power of the military in the region, whereas the emergency rule has all judicial and administrative power and can limit even basic rights. The constitution does not provide exceptions to this, so if the National Assembly requests it, the President cannot reject it. Even if a emergency rule is declared, the President cannot prevent the convocation of the National Assembly under the current law.

If a request for the lifting of emergency martial law is passed by the National Assembly, the Speaker of the National Assembly submits a request to the President and the Minister of Defense. And with respect to the approved request, the President has no right to reject the bill on the lifting of martial law. As mentioned earlier, when the National Assembly requests the lifting of martial law, the President shall lift it. Since it can and should not be done in the “National Assembly”, the President must approve the request for lifting. Therefore, it is natural that the invocation of the veto itself cannot be established, and the rejection itself cannot be made. If it is ignored and rejected, it is unconstitutional and is a reason for impeachment. In the worst case, you can be arrested immediately without impeachment on charges of rebellion.

When martial law is declared, the army’s front corps in the front area and the army’s regional defense division in the rear area serve as the martial law command in the garrison area. For example, in the case of the 56th Division, it becomes the martial law command in Gangbuk, Seoul. Maritime and air force units are also under the command of the command of the army units in their jurisdiction due to their limited martial law work.

Possibility of violation of regulations

Under the current law, it is impossible to dissolve the National Assembly during martial law, and the privilege of not arresting members of the National Assembly is maintained (Article 13 of the martial law law), and martial law can be lifted with the approval of a majority of the National Assembly members. This is to prevent the dictatorship or the military from invoking martial law to suppress the democratization movement, which has been maintained since the 1987 system. Currently, even if the president declares martial law, it is reported to the National Assembly, and if the National Assembly decides to lift it, it is lifted without delay.

However, many point out that the above statement is in principle and that if martial law is actually implemented, a situation different from the principle may occur. Since the privilege of not arresting members of the National Assembly is only applicable to the state that is not a current offender, by law, if the martial law command, which has taken over the jurisdiction, is driven to the current offender of charges related to national harm, members of the National Assembly can also be arrested. In particular, if martial law is implemented, unauthorized rallies and demonstrations are likely to take place in various forms, and even if politicians participate or speak here and support protests against martial law on personal SNS, they can be immediately arrested as current offenders. Therefore, it is necessary to further strengthen the privilege of not arresting members of the National Assembly under the martial law, and to take legislative measures such as allowing at least temporary detention even for current offenders and obtaining the consent of the National Assembly for arresting people.

Looking at the past cases alone, there are few cases in which martial law-related laws have worked properly. Representatively at the time of the 5.17 Civil War, Kim Jong-pil, a member of the National Assembly at the time, was arrested and imprisoned by the Security Command, and Kim Young-sam was similarly house arrest and banned from political activities. In addition to these two, dozens of lawmakers who followed the 3 Kim were arrested or politically suppressed by the martial law command at the time. In other words, in a situation where physical forces such as martial law dominate the law, legal devices are of little significance. Since it is said that the emergency martial law was imposed in the first place, it is said that the president or someone who put it up took control of the commander-in-chief and the military, so it is unclear whether it will be dissolved immediately just because it is an order from the National Assembly. If you tried to take control of the National Assembly, the military would have participated in the pro-Western coup anyway.

If there is a request for a majority of the National Assembly members, the President should immediately lift martial law, and ignoring the demands of the National Assembly is a reason for impeachment because it violates the Constitution. However, in the case of the Republic of Korea, the president himself and the lawmakers are the only constitutional institutions that can lift martial law, so if the martial law army occupies the National Assembly building and blocks the majority of the lawmakers from gathering in one place, the process of lifting martial law cannot proceed. Even if it violates the Constitution, the impeachment process must be initiated by a majority of the National Assembly members, approved by at least two-thirds, and judged by the Constitutional Court, and without that process, it will not be impeached ex officio. Of course, even if martial law was lifted without any procedural defects, it is separate to be the reason for impeachment depending on the situation, nature, and purpose of martial law. Yoon Seok-yeol’s 12.3 emergency martial law, the first martial law in the 6th Republic, was the reason for impeachment, and the impeachment prosecution was passed only 10 days after the martial law was declared and lifted.

Martial law commander

In the case of a national emergency martial law until the 5th construction, the martial law commander has been mainly held by the army chief. This was possible because the army chief had both the military and military authority over the army, which is the core of the martial law army. Currently, the chairman of the Joint Chiefs of Staff has the military authority, so if martial law is declared, the chairman of the Joint Chiefs of Staff will be appointed as the martial law commander unless there is a special reason. This can also be confirmed by law, and if you look at Article 2 of the Joint Chiefs of Staff, there is the martial law department of the Civil Military Operations Department, which is the department in charge of martial law in the Joint Chiefs of Staff, in No. 12, while there is no such department in the organization of each military headquarters, including the Army headquarters. In addition, the website of the Joint Chiefs of Staff stipulates that the “performance of the martial law commander’s duties under the martial law” is among the explanations of the chairman of the Joint Chiefs of Staff’s legal authority.

However, contrary to this principle, in the 2017 martial law document case, the Army Chief of Staff planned to be appointed as martial law commander, and in 2024 during the Yoon Suk Yeol government emergency martial law, General Park An-soo, who was the Army Chief of Staff, was appointed as martial law commander.

Closing remarks

We have learned about the civil war and martial law of the incumbent president in South Korea, but we believe that Korea will wisely overcome the current difficult situation in accordance with democratic laws and principles. The Republic of Korea has developed with an indomitable will to overcome such adversity. Thank you to your friends around the world who are concerned about the democratic crisis in South Korea.