CONTENTS
- 1. Military Criminal Act Litigation, the Detailed Circumstances?
- - Military Criminal Act Litigation, the Relevant Statutes?
- 2. Military Criminal Act Litigation, the Court's Determination?
- 3. Military Criminal Act Litigation, Daeryun's Strategy?
1. Military Criminal Act Litigation, the Detailed Circumstances?
A, the defendant in this case, was brought to trial on charges of assaulting B, a junior officer, by forcing B to kneel and throwing objects at B, within the military officers' quarters of a fighter wing.
B, however, reached a settlement with A and expressed an intention not to seek punishment.
Under Article 260(3) of the Criminal Act 🔗the crime not punishable against the victim's will, where the victim submits a statement declining punishment, the case is concluded by dismissal of the prosecution.
Under Article 60 of the Military Criminal Act, however, where a service member is assaulted at a separately designated location, such as a military base or military installation, the crime not punishable against the victim's will does not apply.
Accordingly, the military court that handled the first instance held that “the officers' lodging where the incident occurred constitutes a ‘military base,’” and sentenced A to a fine.
A, however, argued that the officers' lodging within the base where the assault occurred did not constitute a military base, and appealed, asserting a misapprehension of the law and contending that a dismissal of the prosecution should have been pronounced.
Military Criminal Act Litigation, the Relevant Statutes?
▣ Article 60-6 of the Military Criminal Act (Special Provisions on the Crimes of Assault and Intimidation Against Service Members, etc.)
Where a service member, etc. assaults or intimidates a service member, etc. at a location falling under any of the following subparagraphs, Article 260(3) and Article 283(3) of the Criminal Act (the crime not punishable against the victim's will) shall not apply.
1. A military base under subparagraph 1 of Article 2 of the Protection of Military Bases and Installations Act
- The garrison of a military unit where a military installation is located, a naval base, an air operations base, an air defense base, a military electric telecommunications base, or any other base for carrying out military operations
2. A military installation under subparagraph 2 of Article 2 of the Protection of Military Bases and Installations Act
- A combat position, an obstacle for military purposes, a facility related to explosives, a firing range, a training ground, military electric telecommunications equipment, a research facility and a testing facility or testing ground for military purposes, or any other facility directly used for military purposes as prescribed by Presidential Decree
3. A military aircraft under subparagraph 5 of Article 2 of the Protection of Military Bases and Installations Act
- An airplane, rotary-wing aircraft, airship, or glider used by the military, or any other aircraft
4. A vessel used for military purposes
▣ Article 260 of the Criminal Act (Assault, Assault Against a Lineal Ascendant)
(1) A person who commits an assault against the body of another shall be punished by imprisonment for not more than two years, a fine not exceeding five million won, detention, or a minor fine.
(2) A person who commits the offense under paragraph (1) against his or her own or a spouse's lineal ascendant shall be punished by imprisonment for not more than five years or a fine not exceeding seven million won.
(3) The offenses under paragraphs (1) and (2) may not be prosecuted against the express will of the victim. (▶ the crime not punishable against the victim's will)
2. Military Criminal Act Litigation, the Court's Determination?
The High Court, which conducted the appellate proceedings concerning the Military Criminal Act, dismissed A's appeal and upheld the determination of the first instance.
The officers' lodging where the incident occurred was military officers' quarters, a facility required for military purposes that went beyond a mere matter of private living space or a military welfare facility,
and because entry appeared to require a separate access procedure, the court determined that it constituted a base for carrying out military operations and was therefore a military base.
The court also explained the legislative intent of excluding the rule that assault within a military base is not punishable against the victim's will, stating that it serves to foster a sound barracks culture by eradicating assault within the military, while at the same time addressing situations in which, owing to the distinctive nature of a military organization with its strict chain of command and communal life, it is difficult to decline to give a statement waiving punishment.
Accordingly, the gist of the judgment was that it would be inappropriate to limit a military base, as defined under the Military Criminal Act, to a location where duties with a specific connection to military purposes are carried out “directly.”
3. Military Criminal Act Litigation, Daeryun's Strategy?
We analyzed the High Court judgment holding that an officers' lodging in which service members reside is also regarded as a military base, so that the rule under the Criminal Act that the offense is not punishable against the victim's will cannot apply.
In the case of an assault occurring between service members, the penalty is imprisonment for up to five years or a fine of up to ten million won. Compared with an ordinary assault, which is punishable by imprisonment for up to two years or a fine of up to five million won, this shows that punishment under the Military Criminal Act is imposed more severely.
In addition, a person convicted of assault within the military may, apart from criminal punishment, become subject to disciplinary action, and depending on the outcome of the disciplinary proceedings, the person may no longer be able to maintain his or her status as a service member.
Accordingly, if you become involved in such a matter, it may be advisable to respond promptly through a consultation with an attorney experienced in military law.
Daeryun Law Firm LLP 🔗National Defense and Military Group includes a number of attorneys experienced in military law who have handled a wide range of litigation involving military matters.
If you are facing difficulties relating to the Military Criminal Act, you are welcome to request a consultation with Daeryun Law Firm LLP at any time.
