Defendant

Defendant

Captain Korean Commercial Type

Law Firm Donyang, Attorney Donyang

Mads

Educational Headquarters General Military Court Decision 2008Ra5 decided Nov. 7, 2008

1. The judgment below is reversed.

2. The sentence shall be suspended against the defendant;

3. The defendant is not guilty of suspicions among the facts charged in the instant case.

1. Summary of grounds for appeal;

A. Grounds for appeal by the defendant and his defense counsel

The defendant and his defense counsel committed an error of law by misunderstanding the facts about the status of the non-indicted 1's disease at the time, or by misunderstanding the legal principles on the judgment criteria for harsh acts or coercion.

(b) Grounds for appeal by a military prosecutor;

The judgment of the court below is too minor and unfair in light of the fact that the result of the defendant's act is serious.

2. Determination on the grounds for appeal by the defendant and his defense counsel

A. Judgment on the Cruel Act

Of the facts charged in the instant case, the Defendant found the Defendant guilty of the Defendant’s testimony at the court of the lower court, Nonindicted 2, 3, and 4 of each court’s testimony at the court of first instance, each court’s testimony at the court of first instance, each court of first instance, each prosecutor’s preparation, each prosecutor’s protocol, each prosecutor’s testimony, each prosecutor’s preparation, 3, 5, 67, each of the above facts charged, each of the above facts charged, and each of the above facts charged, on the ground that the Defendant failed to comply with the instructions given to the victim, on the ground that he/she failed to properly implement the instructions given to dispose of the wastes, etc., on October 13, 2007.

"Cruel acts" under Article 62 of the Military Criminal Act refers to cases where persons abuse their authority and inflict mental or physical pain which makes it difficult to understand. In such cases, whether a person constitutes cruel acts should be determined by examining specific circumstances, such as the status of the offender and the victim, the situation at issue, the purpose of the act, and the details and result leading to the act (see Supreme Court Decision 2008Do222, May 29, 2008, etc.).

In full view of the aforementioned legal principles and evidence adopted by the court below as lawful and all records of this case and statements made by the court below in this court, it is reasonable to view that each act of the defendant, which was recognized by the court below, was committed under the purpose and intent of education and guidance for victims in case where the deceased non-indicted 1, who was the victim, did not comply with the defendant's legitimate instructions, and most of them were the general soldiers suffering from the military. Although the defendant's partial act was somewhat excessive in light of the victim's mental and physical capabilities, and was in violation of the policy of implementation of the system of ice 10, it is reasonable to view that the defendant's act was in violation of the above legal principles and the above legal principles and the records of this case and the statements made by the court below in this court. Accordingly, the court below erred by misapprehending the facts in violation of the rules of evidence and by misapprehending the legal principles on harsh acts, thereby affecting the judgment, and the defendant and the defense counsel's allegation that the defendant and the defense counsel alleged that they committed an unlawful act).

B. Judgment on coercion

The defendant and his defense counsel argued that the judgment of the court below convicting the defendant on the ground that the defendant had the right to direct the daily life of the victim and that there was no intention to force the defendant to do so was wrong. In light of each evidence adopted by the court below, each statement in the court of first instance at the court of first instance at the court below, and all records of this case, it was true that the defendant continuously ordered the defendant to commit an act bearing considerable burden on the victim's body even though it did not constitute cruel acts, and 4 times if such instruction was not prepared, it is judged that the victim caused much psychological and physical burden on the daily life, so the defendant's order to prepare the daily life of the defendant is not a recommendation to the effect that he will look back to him, and thus, it cannot be viewed that the defendant did not have a duty to do anything at least because it did not require the victim to take advantage of the means or methods of intimidation in the crime of coercion, and therefore, it cannot be viewed that the defendant had an intentional act of the defendant, in light of the circumstances of the defendant's intent and method of coercion.

3. Scope of reversal

Therefore, in the judgment of the court below, the appeal by the defendant and the defense counsel against the part on the recognition of the crime of harshness against the defendant should be reversed. However, since the court below judged the defendant guilty of coercion in a substantive concurrent relationship, it is inevitable to reverse all the judgment of the court below.

4. Conclusion

Ultimately, the grounds for appeal on the part of the defendant's and his defense counsel's harsh treatment are without examining the grounds for appeal on unfair sentencing by the prosecutor, and the judgment of the court below is reversed pursuant to Articles 431, 414 subparagraph 1 and 11 of the Military Court Act, and the records of this case are deemed sufficient for the military court to render self-finding based on the records of this case. Thus, the military court directly rendered judgment after pleading pursuant to Article 435 of the same Act.

From the end of October 2007 to February 13, 2008, the Defendant: (a) granted ice to the victim or frequently affected the victim on several occasions on the ground that the victim was unable to properly perform his/her duties directed by Nonindicted Party 1; and (b) granted ice to the victim even in cases where the Defendant did not prepare a day-to-date ordering the preparation thereof. As such, the Defendant instructed the victim, who was in a state of drinking by frequently giving a scam and ice scke over several times during the aforementioned period, to prepare a day-to-day work without any obligation.

1. The original judgment of the defendant and each statement fit therefor in this court;

1. Each of the statements made by Nonindicted 2 at the court of the original trial and each of the statements made by Nonindicted 7, 3, 5, and 8 to fit the statements made by Nonindicted 2 at the court of the original trial

1. Each statement made in compliance with each protocol of examination of the accused prepared by the military prosecutor;

1. Each statement prepared by the military prosecutor with respect to Nonindicted 5, 7, 2, and 9;

As a whole, there is evidence.

1. Article applicable to criminal facts;

Article 324 of the Criminal Act

2. The punishment to suspend the sentence;

Four months of imprisonment;

3. Suspension of sentence;

Article 59(1) of the Criminal Act (In depth, motive of crime and Consideration of Criminal Affairs)

Of the facts charged in the instant case, the facts charged as stated above are as stated and the reasons for reversal are as stated in A. Determination on the grounds for appeal by the Defendant and his defense counsel. Accordingly, the facts charged in the instant case fall under a case that does not constitute a crime, and thus, a judgment of not guilty under the former part of Article 380 of the Military Court Act

It is so decided as per Disposition for the above reasons.

Major of the Republic of Korea, the President of the Republic of Korea, the President of the Republic of Korea, the President of the

Note 1) Attached to the judgment of the court below

In addition, the defendant and his defense counsel did not have any special supporting evidence with regard to the suspicion of this case except the confession of the defendant, but the fact that some affiliated soldiers appeared, as properly mentioned by the defense counsel, is sufficient to recognize that the confession of the defendant is true, not a processed confession, and it is sufficient to prove the facts of the crime as a whole in light of the confession and the confession of the defendant. Thus, the argument in the grounds for appeal by the defendant and the defense counsel is rejected (see, e.g., Supreme Court Decision 2008Do2343, May 29, 2008).