Prime Minister Han Duck-soo, center, enters a Cabinet members' meeting at the Government Complex Seoul, Sunday. Yonhap

The prospect of prosecuting the prime minister and Cabinet ministers for their roles in a Dec. 3 martial law meeting has sparked a heated debate among legal experts, with opinions divided over the potential for charges of aiding and abetting treason.

While some say that, under the treason law's broad definition of accomplices, certain officials could be penalized for "passive complicity" for following orders without independent judgment, others say criminal charges would be difficult without evidence of active collaboration.

According to sources familiar with the incident, 11 officials attended the late-night meeting on Dec. 3. They are President Yoon Suk Yeol, Prime Minister Han Duck-soo, Finance Minister Choi Sang-mok, Interior Minister Lee Sang-min, Foreign Affairs Minister Cho Tae-yul, Agriculture Minister Song Mi-ryung, Health Minister Cho Kyoo-hong, Unification Minister Kim Young-ho, SMEs and Startups Minister Oh Young-ju, then-Defense Minister Kim Yong-hyun and Justice Minister Park Sung-jae.

While their specific stances on martial law remain undisclosed, it is reported that several, including Han and Cho Kyoo-hong, opposed the declaration.

Opposition parties and civic groups have called for the prosecution of not only Yoon and former Defense Minister Kim but also the other Cabinet members for aiding and abetting treason.

The Democratic Party of Korea (DPK) criticized the prime minister and People Power Party leader Han Dong-hoon for announcing their intention to handle state affairs in place of Yoon.

"Prime Minister Han is an immediate subject for investigation into treason. If he proposed or agreed to the imposition of martial law during the Cabinet meeting, he is complicit in treason," the DPK said in a statement.

Rep. Cho Kuk, leader of the Rebuilding Korea Party, also expressed intentions to pursue the impeachment of Han Duck-soo and Park.

"They attended the Cabinet meeting and abetted treason and military revolt," Cho said.

Legal experts say that for the prime minister or other officials to face charges of aiding or conspiring in treason, two conditions must be met: they must have recognized martial law as an act of treason, and they must have actively supported it.

A lawyer with experience as a prosecutor said, "For a charge of conspiracy to stand, there must first be clear intent to commit treason. While the Cabinet meeting records will clarify the situation, it currently seems unlikely."

Han Dong-hoon, leader of the ruling People Power Party, leaves the National Assembly in Yeouido, Seoul, Saturday night, after expressing his stance on the failed vote for President Yoon Suk Yeol's impeachment motion. Yonhap

'Material assistance' required for complicity

Determining whether Cabinet members materially aided in treason is also crucial. Merely failing to oppose or remaining silent on martial law is unlikely to meet the legal threshold for aiding and abetting. According to Article 32 of the Criminal Code, aiding and abetting requires actions that directly contribute to the commission of the crime.

A former prosecutor said, "If a Cabinet member gave the president confidence in the necessity of martial law, aiding and abetting charges could apply."

However, Lee Hwang-hee, a law professor at Sungkyunkwan University, said, "Expressing an opinion in a deliberative meeting like the Cabinet, without decision-making power, is insufficient to constitute complicity."

Some legal experts suggest that due to the treason law's broad interpretation of complicity, accusations of "passive complicity" may be more applicable than aiding or conspiracy.

A lawyer with experience at the Constitutional Court said that Park chaired a high-level meeting after the martial law declaration to discuss follow-up measures, which could qualify as passive complicity if martial law is deemed treasonous.

Finally, whether officials failed to prevent martial law, violating their constitutional duty to serve the public as stated in Article 7, is also under scrutiny. Experts say indifference to preventing treason could be seen as a breach of duty.

This article from the Hankook Ilbo, a sister publication of The Korea Times, is translated by a generative AI and edited by The Korea Times.