A composite image set against the backdrop of the National Assembly and the Constitutional Court. It symbolizes the legal debate between conflicting interpretations of the martial law declaration: "legitimate authority" versus "abuse of power." Hanmi Ilbo

Table of Contents

① Arrest of an Espionage Ring or Attempted Insurrection?

② An Exercise of Legitimate Authority or an Abuse of Power?

③ The Noh Sang-won Notebook: A Blueprint for Insurrection or a Political Script?

④ The Hong Jang-won Memo: An Arrest List or a Fabricated Document?

The martial law situation of December 3rd is already before the courts on charges of insurrection. Former President Yoon Suk Yeol has been indicted and is standing trial for insurrection, while some of his aides, including former Prime Minister Han Duck-soo, have also been indicted on charges of complicity and aiding and abetting.

However, what criminal trials examine is whether the "conditions for executing an insurrection have been met," whereas the legitimacy of the martial law declaration itself is a separate matter. In other words, a judgment on the unconstitutionality of declaring martial law and the establishment of the crime of insurrection are distinct issues.

Requirements Mandated by the Constitution and the Martial Law Act

Article 77 of the Constitution stipulates that the President may declare emergency martial law when a state of war, armed conflict, or a comparable national emergency occurs. However, this is not an unlimited authority.

The declaration must be reported to the National Assembly immediately, and if the National Assembly requests its lifting by a majority of its members, the President must do so immediately. The Martial Law Act also strictly limits the scope of restrictions on citizens' fundamental rights and emphasizes the principle of proportionality, limiting measures to the minimum necessary.

Legal scholars generally point out that "while the authority to declare martial law certainly exists, martial law that fails to meet the required conditions and procedures is merely an abuse of power and does not automatically translate into insurrection under criminal law."

The first question is whether the martial law declared on December 3rd truly constituted an "emergency" as defined by the Constitution.

The Constitutional Court’s Ruling... 'Requirements Not Met'

In April 2025, while upholding the impeachment of former President Yoon Suk Yeol, the Constitutional Court ruled that the martial law declaration failed to meet constitutional requirements. The Court stated, "Political deadlock and controversies surrounding the National Election Commission's computer network cannot be considered grounds for emergency martial law." Furthermore, it determined that the procedure for reporting to the National Assembly was not followed and that the scope of martial law was expanded beyond what was necessary.

In short, the Constitutional Court defined the martial law as an unconstitutional abuse of power. However, it did not simultaneously address whether this constituted criminal insurrection. This essentially rejects the equation that "violation of the Constitution equals insurrection."

The Democratic Party and Special Counsel’s Reinforcement of the Insurrection Frame

Nevertheless, the Democratic Party and the Special Counsel’s team consistently maintain the "martial law equals insurrection" frame.

During a media briefing, the Special Counsel team led by Cho Eun-seok presented the Noh Sang-won notebook, emphasizing that "martial law was a pre-planned attempt at insurrection." Based on remarks made by lawmakers Park Sun-won and Kim Byung-joo, the Democratic Party defined the concentration of martial law troops at the National Election Commission as evidence of the execution of an insurrection.

From the Democratic Party's perspective, this frame was necessary. By framing it as an insurrection, they could paint former President Yoon Suk Yeol and the entire conservative camp as forces attempting to destroy the constitutional order. Therefore, the Special Counsel's disclosure of the Noh Sang-won notebook should be understood not as a simple investigative briefing, but in the context of reinforcing a political frame. (This issue will be covered in Part 3 of this series.)

The Conservative Camp’s Counter-argument: Political Pressure and National Security Crisis

Conversely, the conservative camp does not agree with the "martial law equals insurrection" equation.

First, they point out that such an interpretation neutralizes the martial law authority guaranteed by the Constitution. At the time, former President Yoon Suk Yeol was cornered within a political siege, including impeachment pressure from the opposition-controlled National Assembly, prosecution investigations, and media offensives. The conservative camp presents the view that "the political pressure from the Lee Jae-myung regime and the Democratic Party triggered the extreme choice of martial law."

Furthermore, the narrative of a "crackdown on a Chinese espionage ring," raised by reports from journalist Heo Gyeom (currently publisher of Hanmi Ilbo), provides a logical basis for viewing the martial law not as an attempted insurrection, but as a response to a national security crisis. In short, a rift in interpretation has emerged, with the Democratic Party defining it as a power grab and conservatives defining it as national security defense.

Distinguishing Between Procedural Legitimacy and the Establishment of Insurrection

Experts unanimously state that "one must distinguish between the procedural legitimacy of declaring martial law and whether the crime of insurrection was committed."

Procedural legitimacy is a matter of determining whether the requirements mandated by the Constitution and the Martial Law Act were met. This can be grounds for unconstitutionality or impeachment. However, insurrection under criminal law requires execution elements, such as whether state functions were forcibly seized or whether the constitutional order was destroyed through violence.

Therefore, a procedural violation does not automatically lead to insurrection. This is why the Constitutional Court ruled the martial law unconstitutional while leaving the question of insurrection separate.

Remaining Questions

The martial law of December 3rd certainly contained unconstitutional elements. However, whether that constitutes insurrection is a different matter. While the Democratic Party and the Special Counsel hold fast to the insurrection frame, the conservative camp emphasizes political pressure and security crises. The Constitutional Court ruled that the requirements were not met, but criminal trials are still ongoing.

Ultimately, the remaining question is this:

"Was the martial law an exercise of legitimate authority or an abuse of power? And did it lead to the destruction of the constitutional order?" The answer to this question will be determined by future trials and historical evaluation.

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