Defendant

Defendant

Captain Maximum attitude

Law Firm Songpa, Attorneys Park Hung-chul et al.

Mads

6 Military Court Decision 2007Da10 decided Oct. 16, 2007

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000 (three million).

When the defendant does not pay the above fine, the defendant shall be confined in the old house for the period calculated by converting the amount of 50,000 (O00) into one day.

Of the facts charged in the instant case, the charge of harshness and each indecent act is not guilty.

1. Summary of grounds for appeal;

In light of the various sentencing conditions of this case, the sentence of the court below against the defendant is too unreasonable.

2. Judgment of the court below

We examine the defendant's argument on unfair sentencing ex officio.

A. As to the harsh conduct

1) Summary of the facts charged and the judgment of the court below

The summary of the facts charged as to the cruel act is that the victim committed a cruel act by abusing official authority by putting about 30 minutes of the victim's cirical word "overs" on the ground that the victim does not comply with the defendant's shooting control.

The lower court found the Defendant guilty of the facts charged regarding the instant harsh act by comprehensively taking account of the Defendant’s legal statement, the victim Nonindicted Party 1’s written statement and written confirmation.

2) Determination of the immediate deliberation

The term "cruel act" under Article 62 of the Military Criminal Act refers to all acts that endanger the safety of human life and body, and inflict physical suffering which are difficult to see by any means other than assault. In such cases, whether an act constitutes a cruel act shall be determined in consideration of specific circumstances, such as the offender and the victim's position and position, situation, purpose of the act, circumstances leading to the act, the result of the act, etc.

Through the evidence duly adopted at the court below and the records of this case, it is recognized that the defendant, as a commander of the fleet belonging to the court below, the defendant prevented the victim from moving an empty mine in the shooting range that is in danger of a high level of safety accident back to the empty mine house, and warn the victim to the front door of the gun. However, the victim judged that the son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son'

On the other hand, although the Army ice provision enforcement guidelines do not stipulate the "lapping" as a ice-to-face item, it is deemed that the "lapping" is an item that is more difficult than the "lapping" and the "lapping is possible by means of ice-to-faceing," and the defendant, a mid-to-face commander, has a legitimate authority to ice-to-faceing. However, although the time is somewhat excessive, considering the characteristics of the combat forces preservation and the prevention of safety accidents, the defendant's above ice-to-faceing method is not completely acceptable, and it can be recognized that not only did the ice-to-face, but also did not cause any injury to the victim, taking into account the status of the defendant and the victim, motive, means, results, etc., the above act of the defendant can be deemed as not violating social rules prescribed in Article 20 of the Criminal Act.

Therefore, the lower court determined that the instant facts charged against the Defendant constituted a cruel act solely on the ground that he did not comply with the military ice provision within the military, and erred by misapprehending the legal doctrine on the crime of Cruel acts under Article 62 of the Military Criminal Act and the legal doctrine on justifiable acts under Article 20 of the Criminal Act.

3) Sub-decisions

Therefore, the facts charged as to the suspicion of this case cannot be viewed as a harsh act under the Military Criminal Act, and it does not constitute a crime.

B. As to the indecent act

1) Summary of the facts charged and the judgment of the court below

본건 추행의 점에 대한 공소사실의 요지는 “피고인은 2007. 2.부터 8.경까지 소속대행정반 복도 등지에서 피해자 병장 공소외 2, 상병 공소외 3, 상병 공소외 4에게 총 5회에 걸쳐 피해자들의 젖꼭지를 꼬집어 비틀거나 잡아당기는 방법으로 피해자들을 각 추행하였다.”는 것이다.

The lower court found the Defendant guilty of each of the facts charged regarding the indecent act in this case by comprehensively taking into account the Defendant’s legal statement, written statements in the victim Nonindicted 2, 3, and 4 and written confirmations.

2) Determination of the immediate deliberation

Article 92 of the Military Criminal Act provides that a crime of indecent act under Article 92 of the Military Criminal Act is a legal provision established to disturb the discipline of the military conference and to punish acts that violate the freedom of sexual life by committing an indecent act among the public, and that an indecent act in the crime of indecent act is an act with the aim of sexual humiliation, stimulating, or satisfaction, which objectively causes sexual humiliation or aversion to the public and goes against the concept of good sexual morality (see Supreme Court Decision 2000Do524, Dec. 26, 2000).

원심에서 적법하게 채택한 증거 및 이 사건 제반 기록을 통하여 살피건대, 본건 범행의 현장은 소속도 복도 및 행정반 사무실 등이고, 범행의 시각은 오후 또는 저녁시간으로서 다른 병사들이 왕래하거나 함께 생활하는 등 다수인에게 공개된 상태라 할 것인 점, 그 피해자도 특정인이 아닌 불특정 다수인 점, 중대장인 피고인이 부하병사인 피해자들에게 관심의 표현으로 옷을 입을 상태에서 젖꼭지를 꼬집은 점 등의 사실관계를 인정할 수 있다.

Therefore, from the perspective of the defendant, it cannot be deemed that there was an intentional act for the purpose of sexual satisfaction or an indecent act, and there is no other evidence to support it, even if the above act made a displeasure to the victims, it cannot be deemed that the victims suffered sexual humiliation, and there is no evidence to support it, and it is difficult to regard the defendant's act as an indecent act under the Military Criminal Act, considering the fact that the defendant's act is difficult to recognize it as an indecent act in light of the fact that the victims received sexual humiliation and aversion, and that there is no evidence to support it.

Therefore, the court below determined that the defendant's principal facts charged constitute an indecent act, which erred by misapprehending the legal principles of mistake of facts and indecent act under Article 92 of the Military Criminal Act, thereby affecting the conclusion of the judgment.

3) Sub-decisions

Therefore, each of the facts charged about each of the indecent acts in this case cannot be viewed as an indecent act under the Military Criminal Act, and it does not constitute a crime.

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio pursuant to Articles 431, 414 subparag. 1, and 11 of the Military Court Act without examining the defendant's assertion of unfair sentencing, and the judgment of the court below is reversed ex officio, and the military court as seen in this case's records is deemed sufficient to render self-determination. Thus, the court below's judgment of the court below is decided directly as follows after pleading pursuant to Article 435 of the same Act.

The summary of the criminal facts and the evidence of the defendant recognized by this court is as shown in the corresponding column of the judgment below, except for the part on the charge of cruel acts and each indecent act among the criminal facts of the judgment below, and therefore, it is determined to accept all of them in accordance with Article 439 of the Military Court Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 257(1) of the Criminal Act (the point of injury, the selection of fines), Article 262, Article 257(1) of the Criminal Act (the point of injury caused by violence, the selection of fines), Article 260(1) of the Criminal Act (the point of violence, the selection of fines), Article 123 of each Criminal Act (the point of abuse of authority and obstruction of exercise of rights, and the selection

2. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment as provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Punishment for Non-Indicted 5, who is the most severe punishment and the Criminal Execution)

3. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Cruel points

Of the facts charged in the instant case, the summary of the facts charged as to the Defendant’s harsh act is that the Defendant did not follow the control of the Defendant on July 2007, on the ground that the victim Nonindicted 1 (the victim Nonindicted 20 years of age) in the large-scale shooting range belonging to the Defendant on the first day of July 2007, the Defendant committed a cruel act by abusing his official authority by going out to the end of about 30 minutes or more, and thereby abusing his official authority. As examined in the judgment part on the grounds of the instant appeal, the facts charged constitute a cruel act as prescribed in the Military Criminal Act, and thus, the Defendant is acquitted under the former part of Article 380 of the Military Court Act.

2. Points of each indecent act;

Of the facts charged in the instant case, the summary of the facts charged as to the Defendant’s cruel act

1. 2007. 7. 2. 저녁 소속대 5소초 생활관 입구에서 피해자 병장 염치훈(20세)이 수하를 하지 않은 채 행정반 문을 열었다는 이유로 피해자에게 수치심을 줄 생각으로 피고인의 오른 손으로 피해자의 왼쪽 젖꼭지를 꼬집어 비틀고, 피고인의 오른손 손등으로 피해자의 성기를 1회 때리고,

2. 같은 달 초 일자불상경 소속대 행정반에서 피해자 상병 공소외 3(20세)에게 수치심을 줄 생각으로 ‘돼지’라고 놀리며 피고인의 양손으로 피해자의 젖꼭지를 꼬집어 잡아당기고,

3. 같은 달 말 일자불상 오후경 소속중대 복도에서 위 공소외 3(20세)에게 수치심을 줄 생각으로 ‘돼지, 살좀 빼라’라고 놀리며 피고인의 양손으로 피해자의 젖꼭지를 꼬집어 잡아당기고,

4. 같은 해 8. 초순 일자불상경 소속대 복도에서 윗옷을 벗고 속옷만 입은 채 화장실에 씻으러가던 공소외 3(20세)에게 수치심을 줄 생각으로 피고인의 양손으로 피해자의 젖꼭지를 꼬집어 당기고,

5. 같은 해. 7. 일자불상경 소속대 행정반에서 피해자 상병 공소외 4(20세)에게 수치심을 줄 생각으로 피고인의 양손으로 피해자의 젖꼭지를 4회정도 꼬집어 당겨 피해자들을 각 추행하였다.”라고 함에 있는 바,

As examined in the part of the judgment on the grounds of appeal above, since the facts charged do not constitute an indecent act under the Military Criminal Act, it constitutes a crime and thus, a not guilty verdict is rendered pursuant to the former part of Article 380 of the Military Court Act.

Although the Defendant is in a position to do so, such as eradicating violence in the barracks against the father as a commander, he/she shall do violence or injury to the soldiers and soldiers under his/her command and supervision, and make the soldiers with no economic ability die by abusing his/her official authority in a manner that makes him/her lose his/her authority and do not perform any duty, and thus, the Defendant should be punished strictly.

However, in light of the above circumstances, the defendant is the first offender without a previous conviction except the case, the confession made by his father about all crimes, and then his mistake is divided in depth, and the extent of violence and injury to the victims is minor and the motive is considered, most victims have agreed to agree with them, and the victims have filed a written agreement to the effect that they appeal the defendant's preference to the victims. The captain, a commander, also submitted a written agreement to the effect that the defendant faithfully performs his duties, is sufficiently responsible for faithfully and smoothly, and is an exemplary officer, prior to the crisis of creating a smooth cooperation and harmony with his fee, and other circumstances, such as the motive and result of the crime of this case, the defendant's age, character and conduct, environment, criminal records, and circumstances after the crime, etc., shall be determined by taking into account all the circumstances, such as the motive and result of the crime of this case, and the motive and result thereof, the defendant's character and conduct, criminal records, criminal records, criminal records, and circumstances after the crime.

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

The military judge Park Jong-young (Presiding Judge) Jack Kim Tae-tae (Presiding Judge)