The image on the left shows martial law troops retreating after being blocked by National Assembly officials in front of the main building on the day martial law was declared. The image on the right depicts about 10 martial law soldiers who entered the main building retreating to avoid fire extinguishers deployed by National Assembly staff. This graphic is a reconstruction based on video footage broadcast at the time. [Graphic=Hanmi Ilbo]

[Table of Contents]

① Hong Jang-won… The truth the 'worm' couldn't tell

② Kwak Jong-geun… The military's judgment on the day of martial law and the actual situation in the National Assembly

③ Arrest team list… What changed before and after the announcement?

④ Legal structure of rebellion… Why it doesn't apply

⑤ Conclusion… What does the truth of that day tell us

When considering the trial videos, testimonies, and facts confirmed through reporting that have been released so far, the doubt deepens as to whether the crime alleged by the special prosecutor is indeed a 'rebellion'. 

The statements of former NIS Deputy Director Hong Jang-won and former Special Warfare Commander Kwak Jong-geun, who have garnered attention throughout the case, were at a level that demonstrated 'controversy over the legality of the martial law process' and were far from the 'realistic commencement of a riot,' a key element for establishing a rebellion.

It is not a rebellion simply because soldiers stood guard with their weapons, just as a police officer blocking protestors cannot be defined as a riot. Ultimately, the standard that the Supreme Court has consistently maintained is to judge rebellion not by intent or plan, but by the existence of an executed riot.

When the President declares martial law, the military acting according to the martial law protocol is adhering to the law. If military commanders are to individually judge what is right and wrong, it would be a denial of the constitutional value of martial law. The right to lift martial law rests with the National Assembly, and the final judgment on its legitimacy is made by the Constitutional Court, which is our constitutional order. 

The Constitutional Court excluded rebellion from its judgment because rebellion is a matter to be debated within criminal law. While I do not agree with the procedural legitimacy or the basis of the Constitutional Court's decision regarding the impeachment of the President, the equation 'martial law was wrong, therefore it is rebellion' would be difficult for any legal professional to agree with.

Rebellion is judged by the 'realistic commencement of a riot,' not by the 'plan.'

The Supreme Court has repeatedly affirmed the standard in cases such as the December 12th incident (Supreme Court 1997do2420), the Southern Korean National Liberation Front incident (1990do2958), and the Lee Seok-ki rebellion and incitement case (2015do3260) that "rebellion is established when there is an 'execution of a riot' that stops the functions of state organs by coercion." 

This means that mere conspiracy, planning, or confusion in the reporting system cannot constitute a rebellion, and it clarifies that 'execution of a riot' requires the 'result of effectively stopping or excluding the authority of state organs' due to realistic and objective coercive acts. 

Applying this to the facts of this case, the scenes that actually occurred in places like the National Assembly and the Election Commission between December 3rd and 4th are difficult to consider as a riot. Only unarmed troops moved in a limited manner, and there were no clashes, arrests, occupations, or destruction. Furthermore, the functions of organs like the National Assembly and the Election Commission were not actually suspended.

Martial Law Existed, but No Riot Did

Reconstructing the flow of events, while martial law clearly existed, no riot that would satisfy the conditions for rebellion was confirmed anywhere.

The testimonies of Hong Jang-won and Kwak Jong-geun are merely about whether the president ordered the arrest of key figures. Since no actual arrests were made, it has no direct relevance to whether a rebellion occurred. Legally, it is closer to a dispute over the abuse of authority rather than rebellion, but it has become a fiercely contested issue because it is difficult to ignore 'public opinion'.

The establishment of a rebellion is based on execution, not purpose, and execution must involve realistic coercion. However, what was recorded at the scene at that time was a situation with no deaths, no arrests or detentions, no clashes, and no occupation of buildings. The testimony of the deployed martial law troops clarifies that it was an 'securing' operation, not an occupation for the purpose of paralyzing functions.

If the 707th Special Mission Group had entered into an operation to occupy the National Assembly building to paralyze its functions, there would have been countless casualties and sacrifices from the execution of the operation. Even if they had received such an order, the crime of rebellion would not be established because it was not executed, which is the mainstream interpretation in legal circles. 

Former Counter-Intelligence Commander Yeo In-hyeong emphasized in court that "what the prosecution is asking about is just my memo, and what's important is how my subordinates actually acted and what the results were," stressing the decisive point that there was no riot, which precisely aligns with the core of criminal judgment. 

The National Assembly and the Election Commission… The actual scene that makes it difficult to view as 'rebellion execution'

The special prosecutor claims that the deployment of troops around the National Assembly and access to the Election Commission's server room are grounds for the execution of a rebellion. However, this does not meet the 'realistic commencement of a riot' requirement that is essential for legal evaluation. 

At the National Assembly, the troops maintained a waiting posture on the outskirts, and there was no entry into the plenary session hall or any clashes, nor was the functioning of the National Assembly ever suspended. At the Election Commission, while there was an action to check the vicinity of the server room, there was no use of force, occupation, or destruction of systems, and the Election Commission's election management functions also did not cease. 

The repeated judgments of the Supreme Court state that simply carrying a weapon or checking a building cannot constitute the execution of a riot. A riot must involve realistic coercive actions, accompanied by physical clashes and results.

Kim Yong-hyun and Han Duck-soo Cases, Subordinate Crimes Requiring Prior Judgment of Principal Offender

The charges applied to former Prime Minister Han Duck-soo were aiding and abetting rebellion and engaging in important duties for rebellion, and in the case of former Minister of National Defense Kim Yong-hyun, the charges were aiding and abetting rebellion and engaging in important duties for rebellion. In both cases, these are subordinate crimes where aiding and abetting or assisting rebellion can only be recognized if the principal offender's rebellion is first established. Therefore, if the principal offender's rebellion is not established, the subordinate crimes also cannot be legally established. 

Despite this, the reason some media outlets predict that "Han Duck-soo's sentencing will come first" is based on the general practice of "sentencing 4-6 weeks after sentencing request" in ordinary cases, but this does not apply to cases with a principal and subordinate offender structure.

Presiding Judge Lee Jin-kwan, who is presiding over former Prime Minister Han's case, is known for his tendency to prioritize the consolidation of cases and legal stability. Therefore, it is unlikely that a judgment will be made that prematurely concludes subordinate crimes without first judging the principal offense. 

This is because it is widely accepted that if the principal offender is found not guilty and the subordinate offender is found guilty, the guilty verdict for the subordinate offender will be overturned by the Supreme Court. Based on our investigation, the outlook is that he is not a judge who would make an unreasonable move. 

Ultimately, Han Duck-soo's sentencing will inevitably be postponed until after the first-instance verdict in the Yoon Suk-yeol rebellion leader case, and a reasonable timeframe would be after mid-February.

What Does the Truth of That Day Tell Us

When the records of December 3rd and 4th are rearranged and placed in their proper context, the conclusion is simple. 

Martial law actually existed, but there was no riot, and the purpose of subverting the constitution was not realized through objective actions. The Supreme Court's standard of judging rebellion based on an executed riot, not intent, applies equally to this case. 

Video records, courtroom testimonies of military and police commanders, and the actual outcomes at the scene all point to the same conclusion: there was no realistic execution of a rebellion.

Therefore, what the special prosecutor and the Democratic Party desire is closer to overturning the current Supreme Court precedents and creating new legal principles for rebellion. 

This inevitably transcends the scope of legal interpretation and becomes a political judgment, and the criticism that the trial is becoming politicized is an anticipated outcome. 

Ultimately, the conclusion derived from legal principles is clear. On that day, no rebellion was executed. 

Predicting the outcome of a trial is, in a way, easy. 

The reason for predicting this trial is difficult is due to the variable of 'power'.

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