CONTENTS
- 1. The Crime of Political Involvement | Concept and Legal Elements
- - Legal Basis for the Crime of Political Involvement
- 2. Crime of Political Involvement | Reviewing the Representative Types
- - Actual Cases of the Crime of Political Involvement
- 3. Crime of Political Involvement | Penalties and Disciplinary Action
- 4. Crime of Political Involvement | How to Respond on Your Own
- 5. Crime of Political Involvement | What Are the Points of Defense?
- - If You Need Help With the Crime of Political Involvement
1. The Crime of Political Involvement | Concept and Legal Elements
The crime of political involvement is an offense under the Military Criminal Act that is established when a service member engages in politics by using their position.
This is a constitutional principle intended to prevent military power from infringing on the freedom and order of the people, premised on the duty of national defense being separated from political interests
Accordingly, the Military Criminal Act strictly prohibits political involvement by service members and provides that a violation may be punished as the crime of political involvement.
In reality, however, the crime of political involvement arises in various situations, such as social media posts, attendance at rallies, and political remarks made under the direction of a superior, and there are not a few cases where the boundary between the domain of mere freedom of expression and criminal punishment is unclear.
The following examines the concept and legal elements of the crime of political involvement, its representative types and cases, the level of punishment, methods of responding on your own, and practical defense points.
Legal Basis for the Crime of Political Involvement
▶Legal Basis for the Crime of Political Involvement
The legal basis for the crime of political involvement is Article 94 of the Military Criminal Act.
1. Supporting or obstructing the formation of, or membership in, a political party or political organization
2. Using a position in the military to disseminate opinions of support for or opposition to a particular party or particular politician, or, for the purpose of forming such public opinion, disseminating opinions or facts that praise or defame a particular party or particular politician
3. Supporting or obstructing the solicitation of donations for a particular party or particular politician, or using, or causing the use of, funds of the State, local governments, or public institutions under the Act on the Management of Public Institutions
4. Engaging in election campaigning for a particular party or particular person, or taking part in election-related strategy meetings
5. Committing any of the above acts by using an information and communications network under the Act on Promotion of Information and Communications Network Utilization and Information Protection
6. Requesting another person to commit any of the above acts, or promising or announcing a reward or retaliation for doing so
▶Elements of the Crime of Political Involvement
-Subject: Service members (including active-duty personnel, officers, noncommissioned officers, and enlisted soldiers)
-Conduct: Involvement in politics (election campaigning, party activities, acts of supporting or opposing a particular candidate, and similar conduct)
-Method: Cases in which the position is used
2. Crime of Political Involvement | Reviewing the Representative Types
The following are the representative types of the crime of political involvement.
1. Political Expression on Social Media
-Type: Posting messages on personal social media that support or criticize a particular party or candidate
-Example: An active-duty service member repeatedly sharing posts in support of a particular candidate during a presidential election period
2. Participation in Political Rallies or Demonstrations
-Type: Participating in demonstrations for political purposes, making remarks at political rallies, and similar conduct
-Example: Participating in a political demonstration
3. Political Speech or Conduct Through the Chain of Command
-Type: A senior officer pressuring unit members toward a particular political orientation or making political remarks
-Example: A unit officer making remarks that induce soldiers to support a particular candidate
4. Political Remarks in Official Documents or During Training
-Type: Conveying political content through regular training, meetings, official documents, and similar means
-Example: Materials that include biased political views
Actual Cases of the Crime of Political Involvement
CASE 1. An Army Lieutenant Colonel Who Called for a Presidential Candidate to Withdraw
Lieutenant Colonel S of the Army called for the withdrawal of a particular candidate during a presidential campaign period.
As controversy arose over the military service issue of candidate S's son, the officer distributed a statement of conscience asserting that, in the view of the majority of service members, the candidate should withdraw from the presidential race.
The court stated that "a front-line unit battalion commander forgot the grave responsibility entrusted to him, left his garrison area, and issued a statement of conscience, thereby greatly disappointing the many citizens who hope for the political neutrality of the military," and sentenced him to one year of imprisonment.
CASE 2. Praising a Sitting President Constitutes the Crime of Political Involvement
This case involves a former head of the psychological warfare unit of the Cyber Command, who was charged with systematically posting messages on the internet that defamed a particular candidate during the 2012 presidential election.
The Supreme Court ruled that "the President holds both the status of a public official who is the head of the executive branch and the status of a political constitutional institution or politician. Publicly expressing support for a sitting president constitutes, in itself, an act of support for a particular politician, and therefore falls under the act of publicly expressing political opinions that is prohibited under the Military Criminal Act."
3. Crime of Political Involvement | Penalties and Disciplinary Action
The following addresses the penalties for the crime of political involvement and the disciplinary actions that may be imposed concurrently.
1. Criminal Punishment
The statutory penalty for the crime of political involvement is imprisonment for up to five years and suspension of qualifications for up to five years.
Because no fine is prescribed, anyone implicated in the crime of political involvement may need a thorough defense against punishment.
2. Possibility of Concurrent Disciplinary Action
The crime of political involvement is subject to disciplinary action separately from criminal punishment. In particular, under the Public Officials Disciplinary Decree and the military service regulations, the following actions may be imposed.
-Suspension from duty, salary reduction, reprimand, removal from post, discharge, and similar measures
-For habitual or repeated conduct, dismissal may also be possible
4. Crime of Political Involvement | How to Respond on Your Own
The following addresses the methods of responding on your own when implicated in the crime of political involvement.
1. Distinguishing the Line Between Mere Expression and Political Involvement
It is important to clearly distinguish whether one's remarks were simply an exercise of freedom of expression or whether they constituted political involvement.
2. Statement Strategy During Investigation
-One should clearly state the purpose and context at the time of the conduct
-Emphasize that one did not use one's status as a service member and had no intent to exercise political influence
-If the act was carried out under orders, state the hierarchical chain-of-command structure and the difficulty of refusal
3. Securing Evidence
-Secure screenshots, conversation logs, and similar materials that can prove the conduct was not a political activity
-Collect materials proving that the conduct was a passive response rather than a voluntary expression of opinion
4. Submitting a Petition or Written Opinion
-Preparing and submitting a petition or written opinion in one's own handwriting from the early stage of the investigation can also be advantageous
-Organizing and submitting the course of events, the intent, and a request for leniency may have a positive effect on the judgment of the investigative or higher authority
5. Crime of Political Involvement | What Are the Points of Defense?
The following addresses the practical points of defense in the crime of political involvement.
1. Disputing the Definition of a Political Act
The starting point for whether the crime of political involvement is established is clearly distinguishing whether the conduct constitutes a "political act."
-One must examine whether it was more than the mere sharing of an article or a comment, and whether there was repetition and incitement.
-Distinguishing between stating facts and political purpose: proving whether the conveyance of facts was accompanied by a political purpose is the key.
2. Pointing Out the Lack of Evidence of the Violation
The prosecution must prove the suspect's "intent," and a mere act of expression alone is insufficient.
In response, the following points may be emphasized.
-Proving that, under the circumstances, there was no political purpose (personal emotion, discussion of general social issues)
-Emphasizing that there was no explicit expression of intent to support or oppose a particular political force
-Proving the absence of a purpose of political involvement through the overall context of the conversation, the timing and frequency of the posting, the persons addressed, and similar factors
3. Asserting Grounds for Excluding Illegality or Excluding Responsibility
-If the act was carried out in accordance with a superior's order, one may argue that, given the military's hierarchical chain-of-command nature, it was an act resulting from obedience to a lawful order
-Emphasizing that the purpose was not political but rather the protection of the military organization or the sharing of general information
-Highlighting that the expression was at a level permissible under generally accepted social norms
If You Need Help With the Crime of Political Involvement
The crime of political involvement by service members is a sensitive area that requires a balance between the duty of political neutrality required by the Constitution and the individual's freedom of expression.
In actual cases, legitimate expression may become subject to punishment, and conversely, clear political activity may be disguised as mere expression.
Therefore, when one is investigated for the crime of political involvement, it is above all important to clearly determine whether one's conduct constitutes a political act and to promptly secure relevant evidence in response.
When it is ambiguous whether the conduct is a mere expression of opinion or political involvement, it can lead to disciplinary action or criminal punishment, so the initial response is particularly important.
If necessary, one may also consider receiving assistance from an expert well versed in the Military Criminal Act.
At Daeryun Law Firm, attorneys specializing in the Military Criminal Act and military trials provide professional legal services for military-related criminal cases, including the crime of political involvement.
We assist with strategic defense at every stage, including advisory on preparing statements in the early investigation phase, accompaniment during military prosecutor investigations, responding to disciplinary proceedings, and preparing oral arguments for the military court.
If you are suspected of political involvement or are facing an investigation, we recommend consulting promptly to prevent unnecessary punishment or disadvantage.
From trial to the disciplinary committee, Daeryun Law Firm offers one-stop resolution and prompt consultation within your garrison area without the need to travel to another region. We invite you to seek our assistance.
