2005Do798 Violation of the Act on Special Cases concerning the Settlement of Traffic Accidents Violation of the Road Traffic Act

by the Supreme Court of Korea

Supreme Court Justices Yang Seung-tae (Presiding Justice), Kang Shin-wook (Justice in charge), Ko Hyun-chul, Kim Ji-hyung

Main Issues

1. Whether "civilian component who is ordinarily resident in the Republic of Korea" of the United States armed forces is excluded from the concept of civilian under the Agreement regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea provided under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America (Negative)
2. The case holding that where the defendant, who is a national of the United States and a civilian component of the United States armed forces, at the time when he committed the traffic accident, had stayed in the Republic of Korea for over ten years, married a Korean woman, started a family and worked, and thus, his life had been led in the Republic of Korea, the provision concerning criminal jurisdiction over civilian component of the United States armed forces stipulated in the Agreement shall not apply to the defendant, since the defendant can be deemed as a person who is ordinarily resident in the Republic of Korea as stipulated in the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 as Treaty Number 232, and revised for the last time on March 29, 2001 as Treaty Number 553)
3. In peacetime on the Korean peninsula, whether the Republic of Korea shall immediately exercise its criminal jurisdiction over a member of the civilian component of the United States armed forces (Affirmative)

Summary of Decision

1. In accordance with Preamble (a), (b) of Article 1 (Definitions) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 as Treaty Number 232, and revised for the last time on March 29, 2001 as Treaty Number 553) and Article 22 (4), civilian component of the United States armed forces who is ordinarily resident in the Republic of Korea is excluded from the concept of civilian component to whom the Agreement applies, therefore the provisions stipulated in the Agreement about criminal jurisdiction of the Republic of Korea et al. do not apply to him.
2. The case holding that where the defendant, who is a national of the United States and a civilian component of the United States armed forces, at the time when he committed the traffic accident, had stayed in the Republic of Korea for over ten years, married a Korean woman, started a family and worked, and thus, his life had been led in the Republic of Korea, the provision concerning criminal jurisdiction over civilian component of the United States armed forces stipulated in the Agreement shall not apply to the defendant, since the defendant can be deemed as a person who is ordinarily resident in the Republic of Korea as stipulated in the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 as Treaty Number 232, and revised for the last time on March 29, 2001 as Treaty Number 553)
3. In peacetime on the Korean peninsula, the military authorities of the United States do not have criminal jurisdiction over the civilian component of the United States armed forces, so criminal jurisdiction of the Republic of Korea and criminal jurisdiction of the military authorities of the United States do not conflict over a crime committed by a member of the civilian component of the United States armed forces, while the Republic of Korea, in accordance with Article 22 1 (b) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 as Treaty Number 232, and revised for the last time on March 29, 2001 as Treaty Number 553), shall immediately exercise its criminal jurisdiction over a crime that was committed within the territory of the Republic of Korea by a member of the civilian component of the United States armed forces and that can be punished by the laws of the Republic of Korea.

Reference Provisions

1. Articles 1 (a) (b), 22 (4) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America
2. Articles 1 Preamble (a) (b), 22 (4) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America
3. Articles 22 (1) (b) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America

Article 1 (a) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America

Members of the United States armed forces means the personnel on active duty belonging to the land, sea, or air armed services of the United States of America when in the territory of the Republic of Korea.

Article 1 (b) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America

Civilian component means the civilian persons of the United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in the Republic of Korea, but excludes persons who are ordinarily resident in the Republic of Korea or who are mentioned in Paragraph 1 of Article XV.

Article 22 (4) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America

The foregoing provisions of this Article shall not imply any right for the military authorities of the United States to exercise jurisdiction over persons who are nationals of or ordinarily resident in the Republic of Korea, unless they are members of the United States armed forces.

Articles 22 (1) (b) of the Agreement Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America

The military authorities of the United States shall have the right to exercise within the Republic of Korea all criminal and disciplinary jurisdiction conferred on them by the law of the United States over members of the United States armed forces or civilian component, and their dependents.

[Defendant] Defendant

[Appellant] Defendant

[Counsel] Attorney Jin Hyo-keun

[Judgment of the court below] Euijungbu District Court Decision 2004No1878 delivered on Jan. 13, 2005

Disposition

The appeal shall be dismissed.

Reasoning

This is to judge the Reasons for Appeal.

1. Judgment on the argument about criminal jurisdiction of the Republic of Korea

A. Paragraph (a) Preamble of Article I (Definitions) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (which entered into force on February 9, 1967 as Treaty Number 232, and revised for the last time on March 29, 2001 as Treaty Number 553. Hereinafter referred to as the ″Agreement″) stipulates, ″members of the United States armed forces means the personnel on active duty belonging to the land, sea, or air armed services of the United States of America when in the territory of the Republic of Korea,″ and Paragraph (b) Preamble stipulates, ″civilian component means the civilian persons of the United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in the Republic of Korea, but excludes persons who are ordinarily resident in the Republic of Korea or who are mentioned in Paragraph 1 of Article XV.″ Meanwhile, Paragraph 4 of Article XXII (Criminal Jurisdiction) of the Agreement stipulates, ″The foregoing provisions of this Article shall not imply any right for the military authorities of the United States to exercise jurisdiction over persons who are nationals of or ordinarily resident in the Republic of Korea, unless they are members of the United States armed forces.″

In accordance with the above provisions, civilian component of the United States armed forces who is ordinarily resident in the Republic of Korea is excluded from the concept of civilian component to whom the Agreement applies, therefore the provisions stipulated in the Agreement about criminal jurisdiction of the Republic of Korea et al. do not apply to him.

According to records, the defendant, who is a national of the United States and a civilian component of the United States armed forces, when he committed the traffic accident in this case, had stayed in the Republic of Korea for over ten (10) years, married a Korean woman, started a family and worked, which means that his life had been led in the Republic of Korea, so the defendant shall be deemed as a person who is ordinarily resident in the Republic of Korea as stipulated in the Agreement, therefore the provision concerning criminal jurisdiction over civilian component of the United States armed forces stipulated in the Agreement shall not apply to the defendant.

B. Meanwhile, Paragraph 1 (a) of Article XXII of the Agreement stipulates, ″the military authorities of the United States shall have the right to exercise within the Republic of Korea all criminal and disciplinary jurisdiction conferred on them by the law of the United States over members of the United States armed forces or civilian component, and their dependents,″ and Agreed Minute Re Paragraph 1 (a) of Article XXII stipulates, ″It is understood that under the present state of United States law, the military authorities of the United States have no effective criminal jurisdiction in peacetime over members of the civilian component or dependents. If the scope of United States military jurisdiction changes as a result of subsequent legislation, constitutional amendment, or decision by appropriate authorities of the United States, the Government of the United States shall inform the Government of the Republic of Korea through diplomatic channels.″ The above provisions mean that the military authorities of the United States have no effective criminal jurisdiction over members of the civilian component or dependents in peacetime on the Korean peninsula at time of the entry into force of the Agreement on February 9, 1967, in other words, in the status of the armistice in accordance with the Korea Armistice Treaty which entered into force on July 27, 1953. Concerning this, about the case of an emergency on the Korean peninsula, in other words, in the event that martial law is declared by the Republic of Korea (Agreed Minute and Agreed Understanding Re Paragraph 1 (a) of Article XXII) or in the event of hostilities to which the provisions of Article II of the Mutual Defense Treaty apply (Paragraph 11 of Article XXII of the Agreement), it is stipulated that the provisions of this Agreement pertaining to criminal jurisdiction shall be immediately suspended and the military authorities of the United States shall have the right to exercise exclusive jurisdiction over members of the United States armed forces, the civilian component, and their dependents.

In accordance with the above provisions, in peacetime on the Korean peninsula, the military authorities of the United States do not have criminal jurisdiction over the civilian component of the United States armed forces, so criminal jurisdiction of the Republic of Korea and criminal jurisdiction of the military authorities of the United States do not conflict over a crime committed by a member of the civilian component of the United States armed forces, while the Republic of Korea, in accordance with Paragraph 1 (b) of Article 22 of the Agreement, shall immediately exercise its criminal jurisdiction over a crime that was committed within the territory of the Republic of Korea by a member of the civilian component of the United States armed forces and that can be punished by the laws of the Republic of Korea.

C. Therefore, it is reasonable that the original decision judged that the Republic of Korea shall immediately exercise its criminal jurisdiction over the crime of the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents et al. committed by the defendant, who is a member of the civilian component of the United States armed forces, in the city of Paju, which is within the territory of the Republic of Korea, during executing his duties, and there is no violation of law of misunderstanding the legal reasoning concerning the scope of criminal jurisdiction of the Republic of Korea stipulated in the Agreement as argued in the Reasons for Appeal.

2. Judgment on the argument about the excessive assessment

In this case where a fine was sentenced, the argument with the purport that the original sentence is too excessive shall not be a legitimate reason for appeal.

3. Wherefore, the appeal shall be dismissed, and this decision is delivered with the assent of all Justices.

Source

• Supreme Court Decision 2005Do798 Delivered on May 11, 2006, Supreme Court Library of Korea