'First Martial Law Trial' Kim Yong-hyun's Side: "Not Subject to Judicial Review... Charges Should Be Dismissed"

The key figure in the 'December 3 Emergency Martial Law Incident,' former Minister of National Defense Kim Yong-hyun, argued for dismissal of the indictment at the first trial, claiming that the president's declaration of emergency martial law is not subject to judicial review. On the other hand, the prosecution countered that there is no problem with the authority to initiate the investigation or its progress.

Former Minister of National Defense Kim Yong-hyun. Photo by Yonhap News

The Criminal Division 25 of the Seoul Central District Court (Presiding Judge Ji Gui-yeon) held the first preparatory hearing on the morning of the 16th for former Minister Kim, who was indicted on charges including engaging in important duties during a rebellion and abuse of authority. The preparatory hearing is a procedure to organize issues and evidence before the main trial begins. Although the defendant is not obligated to attend, former Minister Kim appeared in court dressed in a suit that day.

On that day, both sides showed a sharp difference of opinion over whether the president's authority to declare emergency martial law is subject to judicial review, whether to consolidate related cases, and the scheduling of trial dates. Former Minister Kim’s side stated, “If the judiciary judges the president’s political acts, prosecutors and judges will end up engaging in political acts,” and requested dismissal of the indictment. In response, the prosecution argued, “The prosecutor’s authority to indict was already recognized during the investigation stage and the detention review process,” and “Since accomplices were additionally transferred, there is no problem with the authority to initiate or proceed with the investigation of this case.”

The court asked both sides about the necessity of consolidating the martial law-related cases involving accomplices such as Police Chief Jo Ji-ho, former Seoul Police Chief Kim Bong-sik, and former Commander of the Defense Security Command Noh Sang-won. The prosecution opposed, saying, “There is concern about trial delays if consolidated,” and “Each case requires careful review.” On the other hand, former Minister Kim’s side said, “They should obviously be consolidated,” and “If consolidated and sufficient cross-examination is conducted, the defendants’ rights to defense and argument will be guaranteed.”

The prosecution and former Minister Kim’s side also clashed over the scheduling of trial dates. The prosecution said, “A fair trial includes a speedy trial,” and “Holding trials two to three times a week is desirable.” In contrast, former Minister Kim’s side said, “Discovering the substantive truth is important; speeding up means pushing toward a predetermined conclusion,” and “Even once a month is difficult. Please proceed with sufficient leeway.” The court decided to determine the procedure after receiving additional opinions from both sides.

On that day, former Minister Kim’s side also submitted a petition for evidence preservation regarding the Central Election Management Committee’s server. They argued, “The president’s act of declaring martial law was itself to investigate allegations of election fraud and to secure the legality and fairness of the election,” and “To verify the legitimacy of martial law, an investigation of the election committee’s server is necessary.”

The court scheduled the second preparatory hearing for 4 p.m. on the 6th of next month. On the same day, at 10 a.m., the cases of defendants Jo Ji-ho and Kim Bong-sik are scheduled, and at 2 p.m., the first preparatory hearing for defendant Noh Sang-won is planned.