[1] Criteria for determining “cruel acts” under Article 62 of the Military Criminal Act and matters to be considered in a case where such acts were performed for educational purposes

[2] The appellate court's judgment that partially convicted or partially acquitted persons related to multiple concurrent crimes under the former part of Article 37 of the Criminal Code was filed by both parties to the appellate court's appeal, but the scope of reversal when only the military prosecutor's appeal concerning the acquitted portion was justified

[1] Article 62 of the Military Criminal Act / [2] Article 37 of the Criminal Act, Articles 383 and 391 of the Criminal Procedure Act

[1] Supreme Court Decision 2008Do222 delivered on May 29, 2008 (Gong2008Ha, 956) / [2] Supreme Court Decision 96Do2606 delivered on June 13, 1997 (Gong1997Ha, 2093) Supreme Court Decision 200Do778 Delivered on June 13, 2000 (Gong2000Ha, 1700) Supreme Court Decision 200Do2123 Delivered on November 28, 200 (Gong201Sang, 229)

Defendant

Military Prosecutor and Defendant

High Court for Armed Forces Decision 2008No172 Decided January 6, 2009

Of the judgment of the court below, the part of the judgment of conviction and the part of the charge of this case concerning the 3.Ga throughma, h, and hye acts of suspicion shall be reversed, and this part of the case shall be remanded to the High Court for Armed Forces. The remaining

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the military prosecutor

A. As to the Cruel Act (as to the charge of this case from 3. A. to ma, h, h.)

"Cruel acts" under Article 62 of the Military Criminal Act refers to cases where persons abuse their authority and inflict mental or physical pain that makes it difficult for them to read. In such cases, whether an act constitutes cruel acts shall 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, the details and result leading to the act, etc. (see Supreme Court Decision 2008Do222, May 29, 2008). Furthermore, even if the act is an act for educational purposes, whether the act exceeds the legitimate limit as necessary for education should also be considered.

According to the records, the defendant forced the victims of non-indicted 1 and 2, who are soldiers, while serving as the administrative diffusion officers belonging to the military unit, to smoke, and forced the victims of non-indicted 2 to smoke by forcing them to smoke, and stated that the victim non-indicted 1 was very scoke and ring. The victim non-indicted 2 refused to smoke because the victim non-indicted 1 did not want to drink, and the defendant forced the plaintiff to scoke and temporarily drinking and stated to the effect that he did not drink and temporarily drinking, and the defendant stated to the effect that the victim non-indicted 3, 4, and 5 had scokeed the road signs or made a statement to the effect that the victim non-indicted 3, 4, and 5 did not scoke any material containing water for a significant period of 20 minutes, and that the victim's non-indicted 1 laid down or made a statement to the effect that he contained in the drinking water for 20 minutes after drinking water or making a statement to this effect.

If the facts are as above, even if the defendant committed the above act for the purpose of emphasizing or admonishing non-smoking, the above act cannot be deemed as an act necessary and within the reasonable scope to attain the discipline, and it is sufficient to evaluate that the act of compelling smoking and the act of compelling smoking by force is an act of disregarding the personal rights of the victims, and that the act of exposing the cup containing heavy water was an act of unfolding and unfolding the victim's personality rights, and that there was no result of injury, such as image, etc., but the mental pressure of the victims did not seem to have been little compared to the reality of the risk. In light of the above, the defendant's above act can be deemed as an act of causing mental pain difficult to see, in light of the fact that the above act itself is an cruel act under the Military Criminal Act.

Nevertheless, the court below held that it is difficult to view the above act as a cruel act solely on the grounds as stated in its reasoning because it is difficult to view it as a physical suffering to the victims due to the above act. It erred by misapprehending the legal principles on cruel act under the Military Criminal Act, which led to failure to exhaust all necessary deliberations or by violating the rules of evidence, and it is obvious that such illegality affected the conclusion of the judgment, and therefore, the ground of

B. As to abuse of authority

Although the military prosecutor submitted a written appeal to the purport that he/she is dissatisfied with the whole judgment of the court below that acquitted all of the harsh acts and abuse of authority, he/she only claimed the grounds of appeal on the part of the harsh acts in the appellate brief, and did not claim the grounds of appeal on the part of the harsh acts (the appellate brief states that only the part of the harsh acts was raised, and the appeal on this part is without merit).

2. Judgment on the Defendant’s grounds of appeal

In a case where the defendant appealed the judgment of the court of first instance on the sole ground of unreasonable sentencing, and the appeal is dismissed, the defendant may not be deemed as the ground of appeal that there was an error of mistake of facts or misapprehension of legal principles against the judgment of the court of first instance (Supreme Court Decision 2005Do3345, Sept. 30, 2005; 2005Do14, Sep. 3

Furthermore, according to the records, the court below's decision that affirmed the judgment of the court of first instance that found the defendant guilty of each cruel act around November 20, 2007, and around December 2007, which affirmed the crime of violation of the Punishment of Violences, etc. Act, the crime of each bodily injury, the crime of abuse of authority against the victim non-indicted 5, and the crime of abuse of authority against the victim non-indicted 5, and the judgment of the court of first instance that found the defendant guilty of each cruel act by carrying dangerous articles

3. Scope of reversal

Some of the appellate court's convictions and part of the facts constituting several criminal facts shall be pronounced innocent, and both the defendant and the military prosecutor filed an appeal against the judgment. However, the defendant's appeal against the convicted part shall not be justified and only the appeal by the military prosecutor is justified, and if the crime which the appellate court found the defendant guilty and the crime which found the defendant not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the appellate court's judgment shall also be reversed (see Supreme Court Decision 2000Do2123, Nov. 28, 200).

According to the above legal principles, the part of the judgment below's conviction and the part of the acquittal which was reversed by the military prosecutor's final appeal among the parts of the judgment below's acquittal are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, one sentence should be imposed on the whole. Accordingly, the part of the judgment below's conviction against the defendant and the part of the acquittal as to the

4. Conclusion

Therefore, the part of the judgment of the court below that found guilty and the part of the judgment of the court below that acquitted each of the above harsh acts are reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the military prosecutor is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Park Si-hwan (Presiding Justice)