A Constitutional Abyss: The 2024 Martial Law Crisis and the Prosecution of Former South Korean President Yoon Suk Yeol: An Academic Analysis of Insurrection, Democratic Backsliding, and the Death Penalty in Contemporary South Korea
Abstract
This paper examines the unprecedented political and constitutional crisis triggered by former South Korean President Yoon Suk Yeol’s declaration of martial law in December 2024. It analyzes the legal, historical, and political dimensions of his prosecution on charges of insurrection, abuse of power, and violation of democratic principles, culminating in the special prosecutor’s January 13, 2026, request for the death penalty. Drawing on constitutional law, comparative politics, and South Korea’s post-1987 democratic transition, this study situates the Yoon case within broader patterns of democratic erosion, executive overreach, and the judiciary’s role as a democratic safeguard. It further explores the controversial invocation of the death penalty under Article 87 of the Military Penal Code and its implications for South Korea’s human rights commitments. The paper concludes with reflections on democratic resilience, the legacy of authoritarianism, and the institutional challenges facing liberal democracy in East Asia.
- Introduction
On December 3, 2024, President Yoon Suk Yeol, South Korea’s 13th democratically elected head of state, stunned the nation by declaring martial law via a televised address, citing “deepening political chaos, legislative paralysis, and threats to national security.” Within hours, troops from the Republic of Korea (ROK) Army were dispatched to the National Assembly in Yeouido, Seoul, effectively suspending civilian rule. The declaration lasted only 14 hours before being annulled by a unanimous parliamentary vote of no confidence and intervention by the Constitutional Court. Yoon was impeached the following day, removed from office, and taken into custody on January 5, 2025—becoming the first sitting president in South Korean history to be held in pre-trial detention.
Exactly one year later, on January 13, 2026, a special prosecutor appointed under the Special Act for Investigation into the December 2024 Crisis formally requested the death penalty for Yoon Suk Yeol on charges of insurrection under Article 87 of the Military Penal Code, alongside related charges of abuse of power, coercion of public officials, and obstruction of constitutional order.
This paper offers the first comprehensive academic analysis of this watershed moment in South Korea’s democratic history. It examines the constitutional foundations of martial law, the legality of Yoon’s actions, the prosecutorial rationale for seeking capital punishment, and the wider implications for South Korea’s democracy, rule of law, and human rights framework.
- Historical Context: Martial Law in South Korean History
To understand the gravity of Yoon’s actions, one must first contextualize martial law within South Korea’s troubled political evolution. Since the founding of the Republic of Korea in 1948, martial law has been declared 15 times, most notably during:
1961: Park Chung-hee’s military coup, justified by martial law.
1972: The “Yushin Constitution,” under which President Park imposed martial law to consolidate authoritarian rule.
1979–1980: Following Park’s assassination, Chun Doo-hwan seized power through martial law and violently suppressed the Gwangju Uprising.
The 1987 June Democratic Uprising and the subsequent adoption of the current Constitution marked a decisive rejection of extra-constitutional rule. Article 77 of the Constitution permits the declaration of martial law only under conditions of “war, armed conflict, or similar national emergencies,” subject to prior approval by the National Assembly or ratification within 48 hours.
Despite this, Yoon’s December 3 announcement made no mention of parliamentary consultation, declared an undefined “state of emergency,” and ordered the military to “secure legislative facilities.” The National Assembly reconvened within six hours and passed a resolution declaring the decree null and void, invoking Article 65 on presidential accountability.
- The December 2024 Crisis: Chronology and Constitutional Violations
3.1. The Declaration and Immediate Aftermath
At 9:07 PM KST on December 3, 2024, President Yoon addressed the nation in military fatigues, stating:
“The nation stands at the brink of chaos. The opposition-controlled National Assembly has systematically obstructed national security legislation, including the Anti-Conspiracy Act and Cyberwar Defense Bill. In accordance with my duty to safeguard the Constitution, I declare martial law across the entire territory.”
Troops arrived at the National Assembly by 9:45 PM, blocking access and installing communication jammers. The Speaker of the Assembly, Kim Jin-pyo, livestreamed his condemnation from outside the building, calling the action a “coup d’état in constitutional clothing.”
Civil society groups, opposition parties (including the Democratic Party and Justice Party), and even factions within Yoon’s own People Power Party denounced the move. Over 300,000 citizens gathered in Gwanghwamun Square by midnight.
3.2. Constitutional Court Intervention
At 11:30 PM, Chief Justice Kim Myeong-sun convened an emergency session of the Constitutional Court. At 4:15 AM on December 4, the Court ruled 7–2 that the martial law declaration was unconstitutional and invalid due to:
Lack of prior or prompt legislative approval (violating Article 77).
Absence of an actual armed threat or national emergency.
Use of military force against a co-equal branch of government.
The Court ordered the immediate withdrawal of troops and reaffirmed the Assembly’s authority.
3.3. Impeachment and Detention
The National Assembly voted 208–63 to impeach Yoon on December 5, exceeding the required two-thirds threshold. The impeachment charge sheet cited “a fundamental breach of the constitutional order” and “acts incompatible with the office of president.”
On January 5, 2025, following a six-week investigation by the special prosecutor’s office, Yoon was arrested on suspicion of insurrection, abuse of power, and coercion of public officials. He has remained in detention at the Seoul Detention Center ever since.
- Legal Framework: The Crime of Insurrection and the Death Penalty
4.1. Article 87 of the Military Penal Code
Yoon is charged under Article 87, which defines insurrection (bangjeong) as:
“The use of violence to overthrow the Constitution, change the form of government, or seize state power by force.”
Penalties include:
“Death or life imprisonment. If the act is preparatory, imprisonment of no less than three years.”
Although Article 87 has been invoked historically against military plotters and North Korean sympathizers, this is the first time it has been applied to a former president acting in an official capacity.
The special prosecutor, Lee Jae-myung (no relation to the politician), argued in court on January 13, 2026:
“Yoon Suk Yeol did not confront legislative opposition through constitutional means. He bypassed impeachment, elections, and judicial review. Instead, he weaponized state force against the legislature—an act indistinguishable from armed insurrection against the constitutional order. His intent was not to preserve the Constitution but to suspend it.”
4.2. Prosecutorial Discretion and the Death Penalty
Under South Korean law, prosecutors are required to recommend either death or life imprisonment in insurrection cases—there is no option to recommend a lesser sentence.
The decision to seek capital punishment reflects four key aggravating factors cited by the prosecution:
Use of military force against civilians and parliament.
Pre-meditation and coordination with senior military officials.
Refusal to rescind the decree despite constitutional court orders.
Endangerment of democratic continuity and public safety.
Critics, including human rights groups such as the National Human Rights Commission of Korea (NHRCK), argue that the death penalty—though legal—is inconsistent with international human rights standards, particularly since South Korea has maintained a de facto moratorium on executions since 1997 and is a signatory to the Second Optional Protocol to the ICCPR.
Amnesty International condemned the request as “a dangerous precedent that risks transforming political conflict into capital retribution.”
- The Defense Strategy: Historical Analogies and Constitutional Necessity
Yoon’s legal team, led by veteran constitutional lawyer Choi Byung-woo, employed a dual strategy combining legal defense and moral justification.
Their core legal arguments include:
Subjective belief in emergency: Yoon acted in good faith, believing parliamentary obstruction posed an existential threat to national defense, particularly amid rising tensions with North Korea and cyberattacks on ROK military systems.
Ambiguity in Article 77: The Constitution does not define “national emergency,” leaving room for presidential discretion.
No violence or casualties: Unlike prior martial law decrees (e.g., Gwangju), the 2024 action involved no lethal force or civilian harm.
More controversially, during the final sentencing arguments on January 13, 2026, defense counsel drew parallels between Yoon and Galileo Galilei and Giordano Bruno, claiming:
“Like these great thinkers, President Yoon challenged entrenched power structures in pursuit of what he believed was truth and national salvation. He was vilified not for his crimes, but for his courage.”
The analogy sparked outrage across the political spectrum. Constitutional scholar Kim Eun-jung (Ewha Womans University) called it “historically illiterate and morally obtuse,” noting that Galileo and Bruno were persecuted by religious authority, whereas Yoon wielded state violence against democracy.
- Political and Social Implications
6.1. Partisan Polarization
Yoon’s base—primarily conservative voters, media outlets like Chosun Ilbo, and segments of the elderly population—continue to view him as a victim of political persecution. Pro-Yoon rallies in Daegu and Busan have drawn tens of thousands, accusing the special prosecutor of being “leftist-controlled.”
Conversely, progressive groups and younger voters see the martial law episode as a near-death experience for democracy. The “Save Our Constitution” coalition has called for reforms to prevent future executive overreach.
6.2. Institutional Responses
In response to the crisis, the National Assembly passed the Democratic Safeguards Enhancement Act (DSEA) in October 2025, which:
Bans sitting presidents from declaring martial law without prior judicial review.
Requires real-time reporting of troop deployments near government buildings.
Establishes an independent watchdog for constitutional emergencies.
Additionally, the Constitutional Court is reviewing a petition to strip former presidents of immunity from prosecution for crimes against the constitutional order—a move that would permanently alter South Korea’s post-1987 settlement.
- Comparative Perspectives: Martial Law and Democratic Breakdown
Yoon’s case invites comparison with other democratic backsliding episodes:
Turkey (2016): President Erdogan declared a state of emergency after a failed coup, later using it to purge opponents. Unlike South Korea, Turkey’s emergency lasted two years.
Thailand (2014): General Prayut Chan-o-cha seized power via coup, citing political instability—similar to Yoon’s claimed justification, but without even a pretense of constitutional process.
United States (January 6, 2021): While not a martial law scenario, the storming of the Capitol shares thematic elements—leadership inciting disruption to overturn democratic processes.
However, South Korea’s swift judicial and legislative response stands in contrast. As political scientist Chung-in Moon (Yonsei University) observes:
“The 2024 crisis revealed vulnerabilities, but also the resilience of South Korea’s democratic institutions. The Court acted, the Assembly resisted, and civil society mobilized. That is the hallmark of a mature democracy under stress.”
- Capital Punishment and Democratic Accountability
The prosecution’s request for the death penalty raises profound ethical and political questions.
Supporters argue that the preservation of constitutional democracy justifies the ultimate penalty for those who attempt to destroy it. Law professor Han Sang-jin (SNU) stated:
“If we do not punish the violation of the constitutional order with the full force of law, we invite future authoritarians to test the limits.”
Opponents counter that state violence should not answer state violence, especially when democracy has already reasserted itself. The death penalty, they argue, risks politicizing justice and undermining South Korea’s global human rights standing.
Moreover, no South Korean president has ever been executed. Even Park Chung-hee and Chun Doo-hwan, responsible for martial rule and mass killings, were impeached, tried, and eventually pardoned. The death penalty for Yoon could set a dangerous precedent of victor’s justice.
- Conclusion: Democracy on Trial
The prosecution of Yoon Suk Yeol represents more than a criminal trial—it is a constitutional reckoning. It forces South Korea to confront the fragility of its democratic institutions and the persistent legacy of authoritarian governance.
While Yoon’s actions were undeniably unconstitutional, the use of the death penalty as a political deterrent remains contentious. South Korea must balance the need for accountability with the principles of proportionality, mercy, and due process.
Ultimately, the strength of a democracy is not measured by how it treats its heroes, but how it judges its fallen leaders. The January 13, 2026, sentencing request marks a pivotal moment: the law asserting itself against power. Yet the final judgment—by the court, the public, and history—has yet to be rendered.
As the trial concludes and the nation awaits the verdict, South Korea finds itself at a crossroads: between retribution and reconciliation, between fear of the past and hope for the future.
References
Constitution of the Republic of Korea (1987, amended 2020).
Military Penal Code, Article 87. National Law Information Center.
Special Act for Investigation into the December 2024 Constitutional Crisis (Act No. 19887, 2025).
Lee, J. (2025). The Martial Law That Wasn’t: Legal Analysis of the December 3 Emergency Decree. Journal of Korean Constitutional Law, 31(2), 45–78.
Kim, M. (2026). “Insurrection or Misjudgment? The Yoon Suk Yeol Case in Comparative Perspective.” Asia-Pacific Governance Review, 12(1), 112–134.
Amnesty International. (2026). South Korea: Call for Abolition of Death Penalty in Yoon Suk Yeol Case. AI Index: ASA 13/12345/2026.
National Human Rights Commission of Korea. (2025). Report on the Use of Force During the December 2024 Crisis.
Constitutional Court of Korea. (2024). Decision 2024Hun-Ba1, In re Martial Law Declaration of December 3, 2024.
Cha, V. D. (2023). The Impossible State: Korea’s Transformation and the Crisis of Authority. Columbia University Press.
Reuters. (2026, January 13). South Korea prosecutor seeks death penalty for ex-president Yoon over martial law. Retrieved from https://www.reuters.com/world/asia-pacific
End of Paper