Officer Assaulting Junior in Military Housing... Court Rules "Assault Crime Not Subject to 'Non-Prosecution by Victim'"

Since the on-base officers' quarters are a military base, the court ruled that even if the victim agrees to a settlement, the crime is not subject to the non-prosecution upon victim's request clause (a crime that cannot be prosecuted against the explicit will of the victim) and can be punished.

According to the legal community on the 31st, the Seoul High Court Criminal Division 8 (Presiding Judges Kim Jae-ho, Kim Kyung-ae, Seo Jeon-gyo) sentenced military officer A (32), who was tried on assault charges, to a fine of 500,000 won, the same as the first trial.

A was tried on charges of assaulting junior officer B on April 8, 2022, at the officers' quarters in the form of a military residence, including forcing him to kneel and throwing objects. A reached a settlement with B in August last year after the incident. Normally, even if an assault case is brought to trial, submitting a settlement agreement to the court results in dismissal of the prosecution.

The key issue in the case was whether the officers' quarters on base where the assault occurred qualifies as a military base. Article 60-6 of the Military Criminal Act excludes the application of Article 260, Paragraph 3 of the Criminal Act, which is the non-prosecution upon victim's request clause, for assault cases involving soldiers occurring at military bases under the Military Bases Act. This means that even if the victim expresses a wish not to prosecute, punishment is still enforced.

The appellate court, like the first trial court, ruled that the quarters in question are a military base and found A guilty. The court stated, "The Military Criminal Act excludes the non-prosecution upon victim's request clause of the Criminal Act for assaults on soldiers within military bases to eradicate violence within the military and to foster a sound military culture that guarantees human rights. Considering the legislative intent, the term 'military base' as defined in the Military Criminal Act should not be narrowly interpreted as a place where military missions directly related to military purposes are carried out."

The court further noted, "The military residence where the assault occurred is more than a simple private living space or a military welfare facility; it is a facility necessary for military purposes. Given that the military residence is located within the base fence to prepare for rapid deployment in emergencies and is strictly controlled by sentries, it qualifies as a military base for conducting military operations."

Regarding A's claim that there was no assault but only physical contact while resisting, which constitutes a justifiable act, the court said, "Considering the contradictions between the recorded statements and the defendant's testimony, the first trial court's judgment that the defendant's actions do not constitute a justifiable act is correct."