President of Yoon Suk Yeol "Declaring martial law to eradicate pro-North Korean forces and protect constitutional order"

■ Hosted by: anchor Sung Kyu Sung, anchor of Judaswon
■ Telephone connection: Shin Bong-ki, professor at Kyungpook National University Law School

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information. Please specify [YTN NewsNIGHT] when quoting.

[Anchor]
As President Yoon Suk Yeol declared an emergency decree earlier, we will connect experts to hear about the legal meaning of the emergency decree, its impact on people's lives, and future procedures. Shin Bong-ki, a former public affairs researcher at the Constitutional Court, is connected to Professor Shin Bong-ki of Kyungpook National University Law School. Is the professor out?

[New sewing machine]
Yes, I'm Professor Shin Bong-ki.

[Anchor]
Professor, the President of Yoon Suk Yeol has declared a state of emergency. It's been less than an hour. Isn't martial law the president's authority under the constitution? What do you mean exactly?

[New sewing machine]
According to Article 77 of our Constitution, "The President has a requirement to declare martial law in accordance with the martial law law when it is necessary to maintain order of public well-being as a career, if I tell you about war, incident, or equivalent national emergency. As for whether this has been met, the president explained various reasons for declaring a state of emergency earlier today.E I think it should be reviewed in the future as to whether it meets that.

[Anchor]
You mentioned it earlier. You talked about Article 77 of the Constitution. If the President needs to respond to military needs or maintain public well-being as a career in wartime, events, or similar national emergencies, martial law can be declared as prescribed by law. Then, can we say that the reason President Yoon mentioned a while ago falls under the constitutional provisions?

[New sewing machine]
In that area, it seems that a considerable amount of effort has been made to give meaning to this. I don't remember the phrase exactly right now. I've only heard about it before, but it's not a wartime incident or a wartime incident, but it's a national emergency that corresponds to the government's various budget and legislative issues in the current National Assembly. I think I've made the judgment that it's in line with the requirements for declaring martial law.

[Anchor]
So the president should make that judgment himself?

[New sewing machine]
This will have to be judged by the National Assembly in the future. Then, our Constitution stipulates that this should be lifted if the National Assembly requests the cancellation of future emergency martial law declarations by a majority of the National Assembly. However, as we can see, this is blocking lawmakers from entering the National Assembly now, so I think it is preventing the National Assembly from creating a situation that meets the requirements of the National Assembly plenary session and the majority of this side. So, if this goes ahead with the emergency martial law, we have to argue judicially about whether it is unconstitutional to declare the emergency martial law. In Korea, the Supreme Court judged that this is a matter for the National Assembly to judge when it comes to emergency martial law, so the Supreme Court does not judge the right to declare emergency martial law, and the Supreme Court has judged that it is not a matter of our Supreme Court trial. However, in the case of the Constitutional Court's unconstitutionality, it is necessary to judge this part in the future. If you go judicially, it will take a lot of time in the future, and for now, the situation itself seems to be quite questionable as to whether the procedure, which is required by the National Assembly to lift martial law with the approval of the majority of the members, will proceed normally at the National Assembly.

[Anchor]
First of all, the question of whether this is constitutionally an emergency martial law situation is that the president who declares the emergency martial law now makes a judgment.

[New sewing machine]
First of all, I made a judgment like that. It was judged to be in the conditions.

[Anchor]
Is it right or wrong? Now the opposition party says it's not right, so they're going to try to lift it again. But if it is lifted, the Constitutional Court judges whether it is the National Assembly's judgment or whether it is correct as a whole?

[New sewing machine]
The Supreme Court has already decided that this is not a situation for the Supreme Court to judge whether the emergency declaration, which is maintained, is unconstitutional, regardless of whether it is right or wrong, but whether the emergency declaration is realistically maintained by the National Assembly, and it is the consistent position of the Supreme Court in our case. However, the Constitutional Court has room to make a judgment on this. So, in order to demand the lifting of the emergency martial law right now, the National Assembly should first try to discuss whether to lift it or not by convening lawmakers to the plenary session of the National Assembly.

[Anchor]
Then professor, so I'm not sure right now. I heard that the National Assembly is closed, but I don't know who can't enter. If lawmakers cannot enter the Capitol, does the plenary session have to be held in the National Assembly?

[New sewing machine]
In the past, there have been cases like this in which the National Assembly uses the so-called snatching method in other places, not in the plenary session of the National Assembly. However, it was also attempted in other places within the National Assembly, and it should be considered that this is actually not acceptable to do it outside the National Assembly, for example, in other buildings in front of the National Assembly.

[Anchor]
So, since the Democratic Party of Korea is currently in the majority party, if the assembly is completed, the lawmakers can vote to lift it, but there is news that it is under control now, so this may not be possible? That's right. First of all, it is a principle that the process of demanding the lifting of martial law should proceed in the National Assembly. Professor, wait a minute. Are you looking at the screen?

[New sewing machine]
I can't look at the screen yet.

[Anchor]
We're showing you the situation in front of the main gate in front of the National Assembly right now. Previously, police buses formed a barrier due to the CCTV situation, and now there is a physical fight between people who want to enter the National Assembly and the police. Anyway, this is the situation in the National Assembly right now. For now, the National Assembly has been closed, and all those who want to go inside are not allowed to go in by the police sanctioning them, but it is not clear who the people who want to go in are.

[New sewing machine]
Looking at the article in the breaking news earlier, it seems that these requests to the Democratic Party and the National Assembly to gather quickly were urgently sent by text message. However, it seems that even active lawmakers are not allowed to enter now.

[Anchor]
That's what I'm saying. The screen viewed from a high position is shown again, but there are people inside the main gate of the National Assembly, but there are no people moving toward the National Assembly building, and everyone is stopped now, so it seems like they are watching the situation at the main gate.

[New sewing machine]
Those inside the National Assembly will be petition police officers or police officers who guard the night of the National Assembly. And active lawmakers are not necessarily inside the National Assembly at this time, because it's normal. However, I think that the most urgent situation is that we have to rally to the National Assembly now.

[Anchor]
First of all, if we talk about the constitution again, martial law is divided into emergency martial law and security martial law. First of all, President Yoon declared an emergency martial law. How are these two different?

[New sewing machine]
Of course, there are two requirements: emergency and security. Emergency martial law allows military forces to take control of administrative and judicial powers without being involved in legislative power. And then the security code takes over power only for administrative power. That's how it's done. So emergency martial law is much stronger than security martial law.

[Anchor]
So legislation cannot be taken with military force under any martial law situation?

[New sewing machine]
That's right. You can't control legislative power through martial law, that is, through emergency martial law or security martial law. For example, you can't do house arrest or anything like that. There is no special basis for doing so, but according to Article 13 of the Korean Martial Law, everything is transferred to a command and supervision system by the martial law commander, but in cases of martial law, there is a provision called the privilege of not arresting members of the National Assembly. There is a rule that states that lawmakers are not arrested or detained except for current offenders during martial law enforcement.

[Anchor]
Then, if lawmakers now struggle with the police to get inside that blocked parliament. Is that also a red-handed offense?

[New sewing machine]
You can look at the situation on the ground and drive it like that.

[Anchor]
If you say it's current, you mean you can do it?

[New sewing machine]
It's possible, given the circumstances. But I think that situation is a matter to judge depending on the situation at the site.

[Anchor]
Breaking news keeps coming in. If you look at it again now, it is said that the martial law commander's army commander, Army Chief of Staff Park An-soo, has been announced. What happens when you become a martial law commander?

[Freshman]
When he becomes the martial law commander, the martial law commander first has command and supervision over various powers. Command and supervision is about emergency martial law, so in the case of emergency martial law, the authority of emergency martial law is given to the administration and judicial functions, and then the martial law commander directly controls the administration, and the military court has the authority over judicial power in the judiciary. The power over the court turns into a situation where the military court has jurisdiction.

[Anchor]
So all the trials are held in the military court?

[New sewing machine]
Let me tell you. With respect to our jurisdiction, we have a lower military court of emergency martial law, and having jurisdiction will have jurisdiction over the following powers. First of all, it is the regulation in Article 10 of the Amendment Act. The crimes of rebellion, foreign exchange, and then international relations, such as international treaties, crimes related to diplomatic relations, then the crimes of harming public security, explosives, obstruction of public affairs, arson, currency, murder, robbery, national security law-related crimes, gun theft, safety management, etc. In addition, the military court has jurisdiction under emergency rules on various criminal acts necessary for the social order of a wide range of countries. It seems that the general civil relationship and this kind of thing can probably be done in the general courts.

[Anchor]
I see. When was the last time this emergency decree was declared?

[New sewing machine]
When the emergency martial law was declared in the past, during the Park Chung-hee administration, there was an emergency martial law declaration. I can't remember the exact number of emergency martial law from No. 1 to No. 14, but as I said earlier, it was a time when there was no Constitutional Court at that time, so asking for the lifting of the emergency martial law because the declaration of the emergency martial law was wrong is unconstitutional and the act of declaring the emergency martial law is unconstitutional. It is not a matter that we can resolve with judicial power in the court. The court avoided judging whether this was unconstitutional because it was a matter that the National Assembly should do, a so-called concept of governance, a concept that should be politically solved in the National Assembly. That's what happened in the past.

[Anchor]
I'm hearing help from Professor Shin Bong-ki. The screen is the current situation in the National Assembly. The police are closing the door to the main gate of the Yeouido National Assembly building, blocking access, and there is a physical fight with people who want to enter. It is not known who the people who are trying to enter are. A lot of media are filming this now, and it's speculated that it's National Assembly officials and aides.Professor Ma and from the perspective of the people when the emergency martial law is declared. Is there any part of your normal life that changes?

[New sewing machine]
There's nothing particularly different about normal life. Because it's about taking control of the authority of the administrative agency and taking control of the jurisdiction, there's no particular impact on the lives of the general public.

[Anchor]
Then, when the emergency martial law is declared, will it be impossible for the media or publication to be controlled, protests, and rallies?

[New sewing machine]
Since it is all under the judgment of the commander of the emergency martial law in that part, there are related provisions in Article 77 (3) of the Korean Constitution. If emergency martial law is declared, special measures can be taken against the warrant system, freedom of association of media childbirth meetings, and the authority of the government or court as prescribed by law. Next, the warrant system and the government and court powers can be viewed as the emergency martial law command replacing this authority.

[Anchor]
We're in the subtitles right now.There will be an attempt by Chairman Lee Jae-myung to arrest the lawmakers. That's what I'm saying. Is that possible?

[New sewing machine]
As I said earlier, didn't I mention the rule of non-arrest privilege? Article 13 states that the enforcement of martial law shall not be arrested or detained unless a member of the National Assembly is a current offender. This regulation prohibits arrest and detention for current offenders, but arrest can be possible in such cases if there are various acts in the form of agenda as current offenders.

[Anchor]
This means that it may vary depending on how you interpret the interpretation of the current criminal and the criteria.

[New sewing machine]
So, we can predict various situations, such as inducing a certain action with a red-handed offender.

[Anchor]
I see. I'll stop here today's talk.