CONTENTS
- 1. Military Assault, a Case Examining Whether the Application of the Crime Not Punishable Against the Victim's Will Under the Criminal Act Is Excluded
- - Military Assault, the Lower Court's Determination on the Application of the Crime Not Punishable Against the Victim's Will
- 2. Military Assault, the High Court's Determination on the Application of the Crime Not Punishable Against the Victim's Will
- 3. Military Assault, Daeryun's Strategy
- - Military Assault FAQ
1. Military Assault, a Case Examining Whether the Application of the Crime Not Punishable Against the Victim's Will Under the Criminal Act Is Excluded
This is a case examining whether, for military assault, the application of the rule on a crime not punishable against the victim's will under the Criminal Act is excluded.
The defendant was indicted on charges of military assault, including throwing charcoal at a junior officer in officers' quarters within a military unit.
The incident occurred in officers' quarters located within a military facility, and although the victim expressed an intention not to punish the defendant, Article 60-6 of the Military Criminal Act applied, so Article 260(3) of the Criminal Act (the crime not punishable against the victim's will) was excluded.
Military Assault, the Lower Court's Determination on the Application of the Crime Not Punishable Against the Victim's Will
In the military assault case, the lower court rendered a guilty verdict.
In the military assault case, the lower court viewed the military housing not as a mere welfare facility but as a military base serving as a foothold for carrying out military operations.
It also stated that, as to whether the assault occurred, the defendant's argument that throwing charcoal was not done with intent to assault could not be accepted in light of ordinary common sense, and it found that the conduct constituted military assault.
2. Military Assault, the High Court's Determination on the Application of the Crime Not Punishable Against the Victim's Will
The military assault defendant filed an appeal, arguing that “the place where the incident occurred is not a military base, so the Military Criminal Act cannot apply.”
The High Court, however, dismissed all of the defendant's grounds of appeal in the military assault case.
The High Court determined that the place where the incident occurred is located within a military unit and is recognized as a militarily protected facility requiring confirmation by a sentry and separate procedures upon entry.
It also stated that the place is necessary for carrying out military operations and is a “garrison of a military unit where military facilities are located,” as defined in Article 2 of the Military Bases Act.
Regarding the military assault case, the High Court stated that “Article 60-6 of the Military Criminal Act excludes the provision on a crime not punishable against the victim's will for assaults committed against service members at a military base, and this reflects a legislative intent to protect military discipline and barracks culture,” and it dismissed all of the defendant's appeal.
3. Military Assault, Daeryun's Strategy
The High Court's recent determination regarding military assault emphasizes the importance of the legal interpretation and legislative intent of the Military Criminal Act, and it can be seen as a case that reaffirms strict standards for eradicating assault within the military.
In particular, Article 60-6 of the Military Criminal Act clearly addresses the crimes of assault and intimidation against service members.
Under Article 60-6 of the Military Criminal Act, where assault or intimidation is committed at a military base, military facility, military aircraft, or military vessel falling under the Protection of Military Bases and Installations Act, the application of the provision on a crime not punishable against the victim's will under Article 260(3) of the Criminal Act is excluded.
This means that the assault is punishable even if the victim does not wish to punish the offender.
Such a provision was established to protect and maintain military discipline and barracks culture, and it allows for serious punishment regardless of the victim's intention not to punish.
This High Court judgment is an important precedent that once again confirms that, even in assault cases occurring at a military base or military facility, strong punishment may be imposed regardless of the victim's intention not to punish.
If you are involved in a military assault case, it is important to fully understand the particular legal differences inherent in the military context and to develop a tailored response strategy suited to the military environment.
In particular, military criminal cases call for professional legal support that takes into account the distinctive nature of military organizations.
Daeryun Law Firm LLP includes 🔗attorneys experienced in military matters who hold a range of military legal practice experience, including as chief of the judge advocate branch, legal staff officer, head of the legal affairs office, military judge, military prosecutor, and disciplinary secretary, and who provide systematic, tailored legal strategies.
Military Assault FAQ
What are the standards for punishing an offender in a military assault case?
Military assault cases fall under the jurisdiction of the military courts. Under Article 62 of the Military Criminal Act, an offender may be subject to imprisonment for up to five years. In addition, disciplinary measures such as demotion or removal from post may be taken within the military.
Can a victim of military assault take legal action even after discharge?
Yes. Even after discharge, one may report the assault to the civilian prosecutors' office or file a petition with the National Human Rights Commission. Even if one's status has changed to that of a civilian after discharge, punishment remains possible as long as the statute of limitations for prosecution of the assault or cruel treatment has not expired.
