Special Prosecutor Fails to Prove Insurrection, Leaving Out 'Riot', Leading to Far-Right Conflict
The Lee Jae-myung administration's special prosecutor failed to prove the crime of insurrection under the Criminal Act, remaining limited to "Constitutional Disruption," thus dropping the "riot" charge, sparking far-right conflict.
Article 87 of the Criminal Act defines insurrection as a crime that endangers the existence of the nation and constitutional order through rioting. In other words, it is a crime committed by inciting a riot with the intent to usurp national territory or subvert the Constitution.
In the "Results of the Investigation into Insurrection and Foreign Exchange Activities," Special Prosecutor Lee Jae-myung specified "elimination of political enemies" and "monopolization of power" as elements of insurrection.
However, he failed to prove the essential element of insurrection, "a crime committed by inciting a riot," as defined in the Criminal Act. The Criminal Act stipulates that <Article 87 (Insurrection) A person who instigates a riot with the purpose of excluding state power or subverting the Constitution in all or part of the territory of the Republic of Korea shall be punished according to the following classifications>.
The Criminal Act defines ‘subversion of the Constitution’ as <Article 91 (Definition of Subversion of the Constitution) ‘Intention to subvert the Constitution’ as <1. extinguishing the function of the Constitution or laws without following the procedures provided for by the Constitution or laws> and <2. Overthrowing a state organ established by the Constitution or making the exercise of its power impossible through coercion>. ‘extinguishment of function’ and ‘impossibility of exercising power’ are essential conditions, and the special prosecutor’s investigation results show a failure to prove these two things.
The special prosecutor's investigation highlighted the act of "invading North Korea with a drone and provoking conflict between the two Koreas," which is a "foreign exchange" provision in the Criminal Act. Article 92 (Foreign Exchange Attraction) A person who conspires with a foreign country to distribute leaflets against the Republic of Korea or conspires with a foreigner to resist the Republic of Korea shall be punished by death or life imprisonment.
Therefore, the basic requirement of "conspiracy with a foreign country" is failing to apply.
Special Prosecutor Cho Eun-seok's team, in announcing the results of their six-month investigation on the 15th, concluded that former President Yoon Seok-yeol's December 3 martial law was "a means to eliminate political opposition by force and monopolize and maintain power."
The special prosecutors stated that "after suspending the National Assembly's functions through martial law, he seized legislative power as an emergency legislative body" and "seized judicial power through the military to monopolize and maintain power to eliminate political opposition by force," and stated this as a requirement for proving "subversion of the Constitution."
The special prosecutor's office presented the following: "The Pyongyang drone infiltration operation was carried out in October and November of last year to create the conditions for declaring martial law, including 'wartime and incidents'." However, the outcome was that North Korea failed to respond militarily to the drone operation, and the martial law conditions failed to be created.
The special prosecutor's office concluded that "they attempted to seize control of the National Election Commission for the purpose of rigging the election," using the "suspension of the National Assembly's functions" as a justification. However, the final outcome of the "plan to obtain a 'confession to election fraud' by tying up Election Commission employees with cable ties and threatening them with baseball bats and other weapons" was not presented.
Wikipedia states that “rebellion is a crime of rioting with the purpose of excluding state power or subverting the Constitution in all or part of the national territory (Article 87 of the Criminal Act)” and that “the dictionary definition of rebellion is ‘an armed struggle within a country’, a large-scale fight with the purpose of overthrowing the government within the country.
Rebellion, like foreign treason, is a crime concerning the existence of a country, but while foreign treason is a crime that threatens the existence of a country from an enemy country, excluding the broad scope of attracting foreign currency, rebellion is an attack on the basic order within a country that threatens the existence of the country.”
Regarding the ‘elements’, Wikipedia stated two things in <The ‘purpose’, which is the subjective element of the crime of rebellion, must be a ‘riot’ with the content of treason or subversion of the national constitution (Article 91 of the Criminal Act)>: <Trespassing on national territory: Occupying all or part of the territory of a country, excluding the exercise of national sovereignty, and exercising illegal power that infringes on the existence and security of the country. It was called treason since 1953 when the Criminal Act was enacted, but was changed from December 9, 2021> and <Subversion of the national constitution: extinguishing the function of the Constitution or laws without following the procedures stipulated in the Constitution or laws, or overthrowing a state organ (constitutional organ) established by the Constitution through coercion or making the exercise of its power impossible>.
Regarding "riot," the dictionary definition is "an act of collective violence that disrupts the peace and order of society, even if it does not reach the level of internal rebellion." The court clarified that "violent" (a Chinese character meaning "violence") connotes "ferocious force," "savage and cruel force," or "physical coercion."
Furthermore, it stated that "this includes acts of exerting not only physical but also mental and psychological pressure." Therefore, it stated that "while the actions of judges who rule in violation of the Constitution and laws may constitute violence, individual judges are independent entities who judge according to their conscience under the Constitution and laws, and therefore do not constitute a group, ultimately not constituting a crime of internal rebellion."
The special prosecutor's findings have sparked a prolonged dispute over proving the "collective act" of "insurrection" for former President Yoon's "violent acts in violation of the Constitution and laws," and have demonstrated a political confrontational behavior that could be intertwined with the legitimacy of the Lee Jae-myung administration.
The day before the special prosecutor's announcement, President Lee, in his government briefing, attempted to introduce a far-right, nationalist supremacist ruling system akin to the Nazi party by using the "Hwan-ppa" (a term used to describe the "Hwandangogi scandal") remark in an attempt to establish a political bridgehead for confrontation between extreme political forces within the country.
The Yoon Seok-yeol administration, which has spearheaded fascist solidarity through international "expansion of freedom," attempted a fascist coup last year under martial law, overthrowing the national motto of "Democratic Republic" with a fascist regime of "Free Korea." In response, the Democratic Party under Lee Jae-myung altered the bill to "overthrow the government," excluding "seizure of the Constitution No. 1" from the impeachment motion and removing the right to investigate "overthrow of the far-right regime" through the "insurrection."
The Lee Jae-myung administration's "impeachment motion" excluded the "overthrow of the regime" from the cases of undermining and seizing national authority. The overthrow of the regime was a coup d'état, a violation of the most fundamental principle of the Constitution, Article 1, "The Republic of Korea shall be a democratic republic," and the Yoon administration attempted to "seize the Republic of Korea as a free nation." This is a classic example of an overthrow of the regime through internal strife.
Former President Yoon's martial law proclamation speech began with, "They are trampling on the constitutional order of the free Republic of Korea." He then declared, "The National Assembly is a monster destroying the free democratic system." He declared, "To protect the free constitutional order, I declare martial law. Through this martial law, we will rebuild and protect the free Republic of Korea, which is falling into the abyss of national ruin." He declared this a "fascist coup d'état" aimed at overthrowing the system.
The martial law speech continued with, "To the good citizens who believed in and followed the values of the constitution of the free Republic of Korea," and "This is unavoidable for the perpetuation of the free Republic of Korea," stating, "As President, I will solely (omitted) protect the free Republic of Korea." He declared the "change in national policy" as the completion point of the coup.
In contrast, the six opposition parties' impeachment motions defined the "threat to the fundamental liberal democratic order, an essential element of the constitutional order," but exempted the motion from liability for the violation of the national precepts of Article 1 of the Constitution, which states that "the Republic of Korea is a democratic republic" and that "sovereignty resides in and is exercised by the people."
The "fundamental liberal democratic order" proposed by the motions is merely a "secondary condition" to the actual preamble of the Constitution, which states, "By further strengthening the fundamental liberal democratic order based on autonomy and harmony, we will contribute to permanent world peace and the common prosperity of humanity by ensuring equal opportunity for all in all areas of politics, economy, society, and culture (omitted). By doing so, we will secure the safety, freedom, and happiness of ourselves and our descendants forever." Furthermore, there is no separate constitutional provision on "liberalism," and "free Korea" is subordinated to the national identity.
The Constitutional Court completely transformed the "liberal democratic order" of the Korean Constitution into a "liberal democratic state system." Based on this, it did not rule on the violation of Article 1 of the Constitution by the proclamation, the core of Yoon Seok-yeol's martial law, and instead misjudged the "national address," which is subordinate to the proclamation, as a preamble to its ruling.
The preamble to the Constitution's "liberal democratic order" corresponds to the constitutional right to order guaranteed by defeated Germany, which introduced anti-fascist civil democracy by guaranteeing the government's official control of the "far right." This guarantees that intelligence agencies track and reject extremism on both the "far left" and the "far right."
The same constitutional provision in Korea, modeled after the German Constitution, restricts "far right control" to "intelligence agencies' surveillance and control of the far left." This, in turn, has led to the government encouraging and neglecting extremists through "far right support," and the repeated expansion of their power has led to far right coups d'état, in violation of the constitutional provision.
See <German Intelligence Agency's Surveillance of Far-Right Parties Strikes, Korean Intelligence Agency's Surveillance of Far-Leftists Promoting Far-Right, December 17, 2024>
<Constitutional Court: 'Founding Liberal Democracy', 'Framework of Liberal Democracy', 'Undermining the Basic Order of Liberal Democracy', Exempts 'Seizure of State Affairs', April 5, 2025>
<Yoon Seok-yeol's 'Democratic Republic' Seizure of the National Principle, 'Freedom' Overthrow of the Regime, Fascist Coup, Lee Jae-myung's Immunity Removed, December 6, 2024>
<Constitutional Court's 'Establishment of Liberal Democracy', Alteration of the Constitution's 'Liberal Democratic Basic Order', 'Seizure of the National Principle' Immunity, April 5, 2025>