The Crime of Insurrection: Elements and Punishment

What is the crime of insurrection?

The crime of insurrection is defined in Article 87 of the Korean Criminal Act.

Article 87 (Insurrection) A person who stages an uprising for the purpose of excluding state power or subverting the Constitution within all or part of the territory of the Republic of Korea shall be punished according to the following classifications.

Elements of the crime of insurrection

The elements of the crime of insurrection are as follows.

1. The purpose of excluding state power or subverting the Constitution within all or part of the territory of the Republic of Korea.

2. The staging of an uprising.

Insurrection and the exclusion of state power

The meaning of excluding state power in the crime of insurrection, according to Constitutional Court precedent 95Hun-Ma221, refers to excluding the people's territorial sovereignty and exercising unlawful control.

What is subversion of the Constitution?

Subversion of the Constitution is defined in Article 91 of the Korean Criminal Act.

Article 91 (Definition of Subversion of the Constitution) In this Chapter, the purpose of subverting the Constitution means falling under any of the following.

Extinguishing the functions of the Constitution or statutes without following the procedures prescribed by the Constitution or statutes.
Overthrowing state institutions established under the Constitution by coercion, or rendering the exercise of their authority impossible.

The meaning of assault or intimidation as the content of an uprising

According to Supreme Court precedent 96Do3376, the meaning of assault or intimidation as the content of an uprising refers to assault and intimidation in their broadest sense, meaning any exercise of physical force or the communication of harm that instills fear. It includes acts that prepare for or assist such conduct, and the degree of force must be sufficient to disturb the peace of a region.

According to Supreme Court precedent 96Do3376, the nationwide extension of martial law has the aspect of posing a threat that the people's fundamental rights may be restricted, and because even the authority of the Prime Minister and the State Council's power to deliberate on it are excluded, the degree of coercion experienced by members of other state institutions is heightened. The Court held that even if such an effect is a natural consequence arising from statutes and the system, if this threatening effect is used as a means by a person who has the purpose of subverting the Constitution to achieve that purpose, it constitutes an uprising.

Punishment for the crime of insurrection

The punishment for the crime of insurrection is as follows.

The ringleader of an insurrection: the death penalty, life imprisonment, or life imprisonment without labor
A person who participates in the planning, takes command, or otherwise engages in an important role: the death penalty, life imprisonment, or imprisonment or imprisonment without labor for at least five years
A person who carries out acts of killing, wounding, destruction, or plunder: the death penalty, life imprisonment, or imprisonment or imprisonment without labor for at least five years
A person who merely follows along or is involved only in the uprising: imprisonment or imprisonment without labor for up to five years
Murder committed for the purpose of insurrection: the death penalty, life imprisonment, or life imprisonment without labor
Preparation, conspiracy, instigation, or propaganda for insurrection: fixed-term imprisonment or fixed-term imprisonment without labor for at least three years

Statute of limitations for the crime of insurrection

The statute of limitations does not apply to the crime of insurrection.

Because the crime of insurrection qualifies as a crime that destroys the constitutional order, the statute of limitations does not apply, by virtue of the ‘Act on Special Cases Concerning the Statute of Limitations for Crimes Destroying the Constitutional Order’.

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