Which court reviews a military prosecutor's decision not to prosecute, and must interviews be recorded? The September 2026 amendment to the Military Courts Act

What changed

Before this amendment, Article 301(1) let a person who had filed a complaint or report, and who objected to a military prosecutor's decision not to prosecute, apply to the High Court for a review of its propriety. Act No. 22013 substitutes a collegiate bench of the Seoul Central District Court, which Articles 303, 304, 306-2 and 306-3 then call 'the court with jurisdiction', and makes the matching substitutions in Article 303(1)(i), Article 303(2)(i) and (ii), Article 304(1), (2) and (5), the proviso to Article 306-2, and Article 306-3(1) and (2). Article 304(4) now reads that an immediate appeal against the decision that a review application is well-founded lies to the Supreme Court 'by applying Article 464 mutatis mutandis', in place of an immediate appeal 'under Article 464'.

The new Article 236-6 lets a military prosecutor or military judicial police officer record the whole of a suspect interview, except where video recording is made under Article 236-2, and requires prior notice of the recording; where a suspect's statement is heard, whatever the name of the investigation or interview, for the purpose of establishing the suspicion of an offence, the statement must be recorded if the suspect or counsel requests it; Article 236-2(2) and (3) then apply mutatis mutandis, with 'video recording' read as 'audio recording', 'video recording material' as 'audio recording material' and 'viewing' as 'listening'. The new Article 259-2 requires a military prosecutor or military judicial police officer to film and record on video, from the start to the end of the compulsory measure, a seizure, search or inspection carried out under a warrant or under Articles 255 and 256, including by body-worn camera, unless there is no recording device or 'substantial reason' such as speedy investigation or military security; officers must try not to infringe the privacy and personality rights of suspects, victims and case-related persons; a written note of the recording goes into the investigation record and the video is kept separately; scope, procedure and method are left to Presidential Decree.

The amendment revises Articles 301, 303, 304, 306-2, 306-3, 231-2, 236-6 and 259-2. The official reason gives the aim as tidying up provisions that do not fit the new system, following the abolition of the Prosecutors' Offices Act, scheduled to take effect on 2 October 2026, and the Public Prosecution Service Act and the Act on the Organisation and Operation of the Serious Crime Investigation Agency, which separate investigation and prosecution, and the amendment of the Criminal Procedure Act on 4 August 2026 abolishing prosecutors' direct investigation powers.

What to read in the text

Addendum Article 1 brings the Act into force on 2 October 2026, with exceptions: the amendment of Article 231-2 on a date set by Presidential Decree within 5 years of promulgation; the amendments of Articles 301, 303, 304, 306-2 and 306-3 on 5 February 2027; and the amendments of Articles 236-6 and 259-2 on 5 August 2027.

Addendum Article 2 applies Article 231-2 only where the investigation is commenced after that provision comes into force, applies Article 236-6 also to cases under investigation when it comes into force, and applies Article 259-2 where a seizure, search or inspection is conducted after it comes into force. Addendum Article 3 provides that, for a review application still before a court when amended Article 301(1) takes effect, the former provision governs jurisdiction despite the amendment. A file should therefore show when the investigation began, whether it was still under investigation on 5 August 2027, when the seizure or search was carried out, and whether the review application was already pending on 5 February 2027. The date for Article 231-2 and the matters under Article 259-2(4) are left to Presidential Decree, which this note has not read; Article 236-2, referred to in Article 236-6, is not in the pack.

Questions for the legislature

Article 259-2(1) excuses video recording where there is no device or 'substantial reason such as speedy investigation or military security'. Neither the article, the addendum nor the official reason says who decides what amounts to such a reason, or how it is to be recorded. On what basis is a court to judge whether an unrecorded seizure, search or inspection fell within that proviso?

Addendum Article 2 applies Article 236-6 'also to cases under investigation' when the provision comes into force, but it does not say whether the duty reaches interviews already held in those cases before that day. Does the duty to record a suspect's statement under Article 236-6(2) extend to a statement taken before 5 August 2027 in a case still under investigation on that day?

When to revisit

We revisit this note when the Presidential Decree that sets the start date for Article 231-2 and the matters under Article 259-2(4) is read, if a court decision explains 'substantial reason' under Article 259-2(1), or if the jurisdiction rule in Article 301(1) is amended again.