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  • Interpretation
  • No.80
  • Date
  • 1958/11/26
  • Issue
    • In the circumstance where a military tribunal and judicial organ have a difference of opinion over the jurisdiction of a case, how may it be settled?
  • Holding
    •        Pursuant to Article 10 of the Statute Governing the Punishment of Persons Guilty of Treason, a person who is involved in an insurrectional organization in the period of martial law will be judged by a military institution, regardless of his status. Whether he is still involved in an insurrectional organization or is no longer involved will be determined by a military institution of jurisdiction.
      
    •        J.Y. Interpretation No. 68 has ruled that a person who confesses that he is no longer involved in an insurrectional organization but can not prove that he has left such organization is guilty of treason. However, the military institution of jurisdiction considered that the case in question did not conform to the stipulations of the Statute Governing the Punishment of Persons Guilty of Treason. 
      
    • Therefore, J.Y. Interpretation No. 68 does not apply. 
  • Reasoning
    •        Because the military institution of jurisdiction in this case considered that the accused person was involved in activities before the enforcement of the Statute Governing the Punishment of Persons Guilty of Treason [Hereinafter “the Statute”] and was not continuously involved in an insurrectional organization, it issued a nonprosecution decree and determined that the criminal activity of the person did not conform to the crime of treason under the Statute. However, J.Y. Interpretation No.68 provides that until a person who has been involved in an insurrectional organization confesses his crime or provides evidence to prove he is no longer involved in an insurrectional organization, he should still be considered to be involved in such an organization. Therefore, such case still conforms to the stipulations of the Statute. In order to resolve the issue, we should determine which the case should legally adopt . Pursuant to the first part of Article 10 of the Statute, the case where an insurrection occurs within a military institution will be judged under martial law, regardless of its status. As to the presumption which was made by the military institution of jurisdiction that this case does not conform to the stipulations of the Statute, we cannot deny its decree, which was based on the then current law. J.Y. Interpretation No. 68 interprets the situation such that a person who has been involved in an insurrectional organization but has not confessed or has not provided evidence to prove he is no longer involved with such insurrectional organization is still guilty of treason. Since it has already been determined by the military institution of jurisdiction that the above case does not come under the Statute, J.Y. Interpretation No.68 does not apply.
      
    • *Translated by Lawrence L. C. Lee.
      
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