Constitutional Court: Military Penal Code Constitutional for Punishing Assaults in Military Bases/Facilities Even If Victim Does Not Wish

Constitutional Court Grand Bench.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the provision in the Military Criminal Act mandating punishment for assault by a soldier against another soldier within military bases or military facilities, even if the victim does not wish to press charges, does not violate the Constitution.

Unlike the general assault crime under the Criminal Act, which is a semi-private prosecution offense that cannot be prosecuted if the victim expresses a desire not to press charges, the legislature's judgment that the public interest gained from the fair and uniform exercise of state criminal authority outweighs the private interest obtained by respecting the victim's wishes in cases of assault between soldiers within military facilities is not problematic.

The Constitutional Court announced on the 7th that it unanimously upheld the constitutionality of Article 60-6, Paragraphs 1 and 2 of the Military Criminal Act, which excludes the application of the semi-private prosecution provision to assaults between soldiers within military bases and facilities, in a constitutional complaint filed by Army Sergeant Kim and Lieutenant Lee, ruling that the provisions do not violate the principle of equality.

Kim was indicted on charges of assaulting subordinates at the personality test room of Battalion A in early December 2019, at the Shin-gakgae Training Ground in mid-March 2020, and in the administrative unit on the 31st of the same month. He received a suspended sentence at the Capital Corps Ordinary Military Court (first trial) and is currently undergoing an appeal trial at the High Military Court.

Kim submitted statements of non-prosecution from each victim indicating they did not wish to press charges, but due to the contested provision that excludes the application of the semi-private prosecution clause in cases where a soldier assaults another soldier within a military base, he was not acquitted. After his request for a constitutional review of the provision was dismissed during the trial, he filed a constitutional complaint with the Constitutional Court.

Lieutenant Lee, who served in Battalion B, was indicted on charges of assaulting a subordinate at the Iron Wall Shooting Range on June 4, 2019, and the next day at the barracks. He was fined 3 million won in the first trial, appealed, but the appeal was dismissed, and his conviction was confirmed by the Supreme Court in January.

Lee also submitted a statement of non-prosecution from the victim but was unable to obtain dismissal of the indictment due to the contested provision, and filed a constitutional complaint with the Constitutional Court during the appeal trial.

The provision in question is Article 60-6, Paragraphs 1 and 2 of the Military Criminal Act, which states, "When a soldier assaults or threatens another soldier in any of the following places, Article 260, Paragraph 3 and Article 283, Paragraph 3 of the Criminal Act shall not apply."

Paragraph 1 enumerates "military bases" as defined under the Military Base and Military Facility Protection Act, and Paragraph 2 enumerates "military facilities" under the same law, as cases where the semi-private prosecution clause for assault and threat crimes under the Criminal Act does not apply.

Originally, when the Military Criminal Act was enacted in 1962, separate punishment provisions were established for assault against superiors, sentries, and other personnel on duty, but for other soldiers, the semi-private prosecution clause applied as in general assault crimes, making prosecution impossible if the victim expressed a desire not to press charges. The contested provision was newly established in 2016.

Kim and Lee argued in their constitutional complaint that "since the Military Criminal Act separately regulates assault crimes against superiors, sentries, and soldiers on duty, there is no reason to treat assaults against other soldiers differently from ordinary citizens, nor to treat them differently from police officers or public officials who also operate under strict hierarchical command," claiming that the provision violates the constitutional principle of equality.

They also argued, "Considering that legal peace can be swiftly restored through reconciliation with the victim based on the offender's repentance, the contested provision rather contributes to division within the military and causes adverse effects by hindering reconciliation and forgiveness," and "even if the question of whether the offense is semi-private prosecution falls within legislative discretion, the contested provision, which irrationally produces repeat offenders solely because they are soldiers, exceeds legislative discretion and violates the principle of equality."

However, the Constitutional Court rejected these claims.

The Court stated, "While 'general assault crimes' and 'assault crimes between soldiers within military bases and facilities' share the commonality of being offenses involving physical force against another's body, the former primarily protects 'physical safety,' whereas the latter primarily protects 'military discipline and combat readiness,' which is a significant difference."

It continued, "Due to the strict hierarchical order and collective living environment unique to military organizations, if the victim wishes to punish the perpetrator, there is a risk of further harm by other members, and if a superior intervenes in the agreement between the perpetrator and victim, the victim may find it difficult to refuse the desire not to press charges."

Furthermore, the Court noted, "Considering that conscripts fulfill their military service obligations as part of the constitutional duty of national defense, and the state has the responsibility to protect the physical safety of conscripts living in military barracks, the legislature's judgment that conscripts should ultimately be protected from assaults within military bases and facilities does not appear to exceed the broad freedom of formation granted by the Constitution."

Regarding the claim of discriminatory treatment compared to police officers or public officials, the Court judged, "Soldiers serving on active duty within military bases and facilities live collectively under strict hierarchical command and bear the high risks associated with possessing lethal weapons, making it difficult to compare them on the same level as police officers or public officials."

Based on these grounds, the Court concluded, "Therefore, it is difficult to view the contested provision as disrupting the balance within the penal system, and it does not violate the principle of equality."

A Constitutional Court official explained the significance of this decision as "the first ruling to declare the state's responsibility to protect citizens fulfilling their military service obligations as part of the duty of national defense."

This content was produced with the assistance of AI translation services.