Eve of Verdict on Yoon Suk Yeol as Ringleader of Rebellion: Death Penalty or Life Sentence? Key Issues to Watch [Legal Insight]

[Financial News] The first-instance verdict for former President Yoon Suk Yeol, who has been put on trial for declaring the unconstitutional and unlawful December 3 emergency martial law, is now one day away. Yoon’s side has consistently argued that the emergency martial law was neither unconstitutional nor illegal, characterizing it instead as a warning measure. However, many in the legal community believe that, given the unconstitutionality of the martial law proclamation, it will be difficult for him to avoid a guilty verdict. They also predict that, in light of sentencing parity with other defendants, the court is more likely to impose life imprisonment than the death penalty.

According to legal sources on the 18th, Criminal Division 25 of the Seoul Central District Court, presided over by Judge Ji Gui-yeon, will hand down the first-instance verdict on the 19th for former President Yoon, who has been indicted on charges of leading a rebellion and abusing his authority by obstructing the exercise of rights.
Yoon’s defense has repeatedly described the emergency martial law as a "warning" measure. They argue that the Democratic Party of Korea had paralyzed state affairs by exploiting its majority in the National Assembly, and that the president exercised his exclusive constitutional power to declare martial law in order to alert the public to this situation. They further contend that deploying military and police forces to state institutions such as the National Assembly and the National Election Commission (NEC) was intended to maintain order, not to control access or interfere with their functions.
The legal community, however, largely expects the court will not accept this line of argument. A decisive factor is the series of martial law proclamations issued after the declaration. Even if the court does not focus on procedural flaws in the Cabinet’s deliberation process, many experts say the proclamations themselves already contain unconstitutional and unlawful defects. A lawyer who previously served as a presiding judge stated, "The core basis for determining rebellion is the martial law proclamation," adding, "The proclamation is so blatantly unconstitutional and unlawful that it satisfies the elements of the crime of rebellion."
Prior rulings that have already recognized these issues are also expected to weigh heavily on the court. Yoon’s side argued that the case did not fall within the investigative authority of the Corruption Investigation Office for High-ranking Officials (CIO), but Criminal Division 35 of the same court, presided over by Judge Baek Dae-hyun, has already acknowledged that the CIO had jurisdiction.
The conclusion that "emergency martial law equals rebellion" has already been affirmed twice. Criminal Division 33 of the Seoul Central District Court, presided over by Judge Lee Jin-gwan, which sentenced former Prime Minister Han Duck-soo to 23 years in prison, and Criminal Division 32, presided over by Judge Ryu Kyung-jin, which sentenced former Minister of the Interior and Safety Lee Sang-min to seven years, both ruled that the December 3 emergency martial law constituted rebellion. In particular, in Han’s trial, the bench condemned the emergency martial law as a "rebellion from above."

The special prosecutor team has asked the court to impose the death penalty on Yoon. They argue that he conspired in advance to declare emergency martial law and that, given the unconstitutional and unlawful nature of the measure, the court should not impose the statutory minimum sentence.
On the other hand, many analysts believe the court will opt for life imprisonment, noting that although Yoon, former Minister of National Defense Kim Yong-hyun, and others attempted to have politicians such as then Democratic Party of Korea leader Lee Jae-myung and former People Power Party leader Han Dong-hoon arrested, the plan was never actually carried out. Observers also point out that, unlike in the rebellion case involving former President Chun Doo-hwan, no one was injured or killed during the various unconstitutional and unlawful actions, including the deployment of troops to the National Assembly. A lawyer who previously served as a prosecutor commented, "It is true that the December 3 emergency martial law was unconstitutional and unlawful, but there are clearly differences from the trial of former President Chun Doo-hwan," adding, "For that reason, it is realistically difficult to see the court going as far as imposing the death penalty."
Some also stress, however, that as in the ruling on former Prime Minister Han, the "post-crime circumstances"—that is, the consequences that did not occur but nearly did, and the potential outcomes—will be crucial. For example, if the standoff with deployed troops had escalated further, the "possibility" that casualties might have occurred could become a key factor in determining the sentence. Another lawyer who formerly served as a presiding judge noted, "The results that could have occurred because of the emergency martial law, and the outcomes that did not actually happen but almost did, are extremely important," adding, "The facts cited in the trial of former Prime Minister Han are likely to have a significant impact here as well."
theknight@fnnews.com Jung Kyung-soo Reporter