These days, two terms often appear side by side in the news: insurrection and mutiny.
They sound similar, but they are different offenses under different laws.
Once you understand the difference, you can also see what the current dispute is about.
3-line summary
1. Insurrection is in the Criminal Act; mutiny is in the Military Criminal Act.
2. Mutiny is a status offense that applies only to military personnel.
3. The penalties for ringleaders also differ.
Placing the provisions side by side
First, consider what the two provisions prohibit.
Insurrection is Article 87 of the Criminal Act. It is established when a person riots for the purpose of subverting the national territory or disrupting the constitutional order.
Mutiny is Article 5 of the Military Criminal Act. It applies when people conspire and mutiny while carrying weapons.
Two differences are already clear.
| Insurrection | Mutiny | |
|---|---|---|
| Which law | Criminal Act | Military Criminal Act |
| To whom it applies | Both civilians and military personnel | Military personnel, military civilian employees, etc. |
| What must be examined | The purpose of disrupting the constitutional order | Carrying weapons and departing from the chain of command |
Mutiny does not apply to just anyone
This is the biggest difference. As its name indicates, the Military Criminal Act is a law that applies to military personnel.
Mutiny can be established only for a person who, at the time of the offense, was a member of the military or held a status equivalent to military personnel, such as a military civilian employee. In legal terminology, this is called a status offense. Without the relevant status, a person cannot be punished for that offense even if they commit the same act.
Insurrection, by contrast, does not depend on status. Whether a civilian or a member of the military, a person may be charged if there was a purpose of disrupting the constitutional order and the conduct rose to the level of a riot.
This is the root of the debate now taking place among special counsels: Can a person who is not a member of the military be charged with an offense under the Military Criminal Act?
What must be proven also differs
The two offenses also differ in what is contested in court.
For insurrection, it must be established whether there was a purpose of disrupting the constitutional order. Because this requires proving what was in a person's mind, it is not easy.
Mutiny looks instead at facts more readily apparent externally: whether weapons were carried, whether there was a conspiracy, and whether force was exercised outside the chain of command. Purpose is not considered.
Not having to consider purpose also means that proof may be easier.
The penalties for ringleaders differ
The law calls the leader a “ringleader.” Both offenses treat ringleaders most severely, but the range differs.
| For the ringleader | |
|---|---|
| Insurrection | Death penalty · life imprisonment · life imprisonment without labor |
| Mutiny | Death penalty |
For an insurrection ringleader, one of three penalties may be selected, but for a mutiny ringleader, no penalty other than the death penalty is prescribed. Apart from the separate question of whether mitigating circumstances are recognized in court, the provision itself offers no other option.
This makes clear why the choice of charge is such a significant issue.
How were the offenses distinguished in 1980?
There is a reason the 1980 events are mentioned in the current debate. At that time, the two offenses were applied to the same people separately by period.
The December 12, 1979 incident was treated as military mutiny, while the May 17, 1980 expansion of emergency martial law was treated as insurrection. The former involved mobilizing troops within the military; the latter involved actions directed at state institutions.
In April 1997, the Supreme Court dismissed the appeal in this case. In that ruling, it regarded the period of the insurrection as running from the expansion of emergency martial law on May 17, 1980, through the lifting of martial law on January 24, 1981. It treated not martial law itself, but the continuous series of acts surrounding martial law, as a single insurrection.
In the same ruling, the Court also held that insurrection can be established in the form of indirect perpetration. This means a person may be guilty even without personally carrying out the act, if they directed others to do so.
Which side now uses this precedent as support varies depending on the observer. But the fact that the two offenses were also applied separately in 1980 remains in the record.
Issues that change between indictment and judgment
First, indictment and judgment are different. The current discussion concerns which charge should be brought to trial. Whether an offense was committed is for the court to decide.
Second, differences of opinion among investigative bodies are common. Disagreement over which provision to apply is part of the process. It is best not to read it as though a conclusion has been reached.
Third, if the charge changes, the issues contested also change. With insurrection, purpose becomes the issue; with mutiny, status and carrying weapons become the issues. It is the same case, but the arguments made in court change.
Their similar names can cause them to be conflated, but the two offenses differ starting with which law they are found in.
One is in the Criminal Act and applies to anyone; the other is in the Military Criminal Act and applies to military personnel. What must be proven differs, as does the range of penalties for ringleaders.
References
- National Law Information Center Criminal Act, Article 87 (Insurrection)
- National Law Information Center Military Criminal Act, Article 5 (Mutiny)
- Hankook Ilbo No Penalty Prescribed for a Mutiny Ringleader Other Than Death / How Do Insurrection and Mutiny Differ?
- Wikipedia Arrest of Former Presidents Chun Doo-hwan and Roh Tae-woo