일반 국민에 대하여 군사법원에 재판권이 있는 군형법상 범죄와 일반 범죄가 경합범 관계에 있는 경우 재판권의 소재

In cases where a civilian was charged in a single count with committing a specific offense under the military criminal law (which gives a military court exceptional jurisdiction) and a general crime, the Korean Supreme Court previously stated that military courts have status jurisdiction over military crimes involving civilians and consistently held that military courts also have jurisdiction over general criminal cases for which civilians have been concurrently charged. However, there have been polarization within the academic circle and legal profession as to the attitude of the Supreme Court, i.e., military courts (or general courts) have jurisdiction, both courts have jurisdiction, or general courts should at least have jurisdiction over general criminal cases. In the subject case, the Supreme Court affirmed that, inasmuch as military courts have status jurisdiction under Article 2(1)1 of the Military Court Act over specific offenses committed by civilians, actual jurisdiction was confined to the said military offense and did not apply to other general crimes committed before or after being charged with the relevant military offense. Furthermore, in cases where a civilian, who committed multiple military and general crimes, was charged with a single offense on the ground that the crimes committed were regarded as concurrent crimes under Article 37 of the Criminal Act, the Supreme Court determined that general courts could not exercise jurisdiction as military courts should be deemed having exclusive jurisdiction over specific military offenses and that military courts’ exercise of jurisdiction over general criminal cases was impermissible, thereby acknowledging that general courts have jurisdiction over general criminal cases involving civilians. The Supreme Court’s order is deemed tenable in light of the spirit and purport of the Constitution that guarantees a civilian’s right to not undergo trial in a military court as fundamental, barring special circumstances. Of note, the subject case is significant in that the Supreme Court: (i) restricted the broadening of jurisdiction of a military court concerning civilians and explicitly declared a civilian’s right to a fair and speedy trial in a general court (not a military court) before a judge qualified under the Constitution and law as an inviolable right; and (ii) established a prima facie case for the resolution of jurisdictional disputes between a military court and a general court in cases of status change (e.g., military enlistment or discharge).