[Exclusive] Supreme Court: "Even if National Assembly demands martial law lift, no effect if President does not act"…1955 ruling

"Martial Law Remains Effective Without Presidential Lift"
1955 Ruling... Attention on President Yoon's Martial Law Lift Proclamation

With the National Assembly's approval of the proposal to demand the lifting of martial law, attention is focused on whether the effect of the martial law declaration remains if President Yoon Seok-yeol does not lift martial law despite the National Assembly's demand. It has been confirmed that in the past, the Supreme Court interpreted the provisions on the lifting of martial law under the Martial Law Act and ruled that "unless the president takes a separate action to lift martial law, the effect of martial law is maintained."

According to the legal community on the 4th, the Supreme Court ruled in 1955 that "even if the National Assembly demands the lifting of martial law, if the president does not lift it, the effect of lifting does not occur," and "the National Assembly's demand for lifting martial law takes effect when the president implements it." However, at that time, the Martial Law Act contained provisions similar to the current "shall lift" clause, but since there was no explicit constitutional provision regarding the demand to lift martial law, there may be differing opinions on whether the Supreme Court's view remains valid today.

Supreme Court, Seocho-gu, Seoul.

In the appeal trial of a case involving murder, breach of trust, and embezzlement decided in January 1955, the Supreme Court stated, "Regarding the effect of lifting martial law, even if there is a demand from the National Assembly to lift it, if the president does not lift it, it is reasonable to interpret that the effect of lifting does not occur. Therefore, any contrary argument is merely an independent opinion."

This was the Supreme Court's statement rejecting the lawyer's appeal argument that the effect of lifting martial law would automatically occur after a certain period even if the president does not lift martial law.

The Martial Law Act in force at that time regulated the lifting of martial law in Chapter 3, "Lifting of Martial Law."

Article 20 of the Martial Law Act at that time stipulated, "When the situations specified in Articles 3 or 4 return to normal, the president shall lift martial law." Article 21 also stated, "When the National Assembly demands the lifting of martial law, the president shall lift it," using the expression "shall lift," similar to the current Constitution and Martial Law Act.

The defendant's lawyer at that time argued in the appeal that "It is a well-known fact that when the National Assembly demands the lifting of martial law, the president shall lift it as stipulated in Article 21 of the Martial Law Act. Since the National Assembly demanded the lifting of martial law imposed in the Busan district at that time, the president should promptly lift martial law upon such a demand. Even if the president does not take such action, after a socially reasonable period has passed since the demand, martial law should be considered automatically lifted."

The lawyer also argued, "It is a well-known fact that a socially reasonable period for lifting martial law has passed from the National Assembly's initial demand until the first military court trial verdict against the defendant. While some may argue that the effect of martial law lifting occurs only by the president's act of lifting, this is not like promulgating a law that restricts citizens' rights or increases obligations. Rather, lifting martial law removes such restrictions and increases, so it should be automatically lifted after a reasonable period without requiring the president's act."

In other words, the lawyer's logic was that lifting martial law does not restrict citizens' rights but rather removes restrictions on rights, so even without a separate presidential act to lift martial law, if the National Assembly demands lifting and a certain period passes, martial law is automatically lifted.

However, the Supreme Court dismissed this argument as an "independent opinion" and took the position that even if the National Assembly demands lifting, martial law is not lifted unless the president lifts it.

Looking at the current constitutional and legal provisions on lifting martial law, Article 77, Paragraph 5 of the Constitution states, "When the National Assembly demands the lifting of martial law with the approval of the majority of the total members, the president shall lift it." This provision was first established in the Constitution No. 6, revised on December 26, 1962.

Article 11 (Lifting of Martial Law), Paragraph 1 of the Martial Law Act states, "When the martial law situation under Article 2, Paragraph 2 or 3 returns to normal or when the National Assembly demands the lifting of martial law, the president shall promptly lift martial law and announce it."

However, Paragraph 2 of the same article states, "When the president intends to lift martial law pursuant to Paragraph 1, the deliberation of the State Council shall be required," leaving room for interpretation that martial law is not automatically lifted immediately upon the National Assembly's demand but requires the president's lifting action.