The ‘criteria for judging’ a military lawyer’s use of force and abuse is

Military criminal law has traditionally strictly punished crimes against superiors in accordance with the legislative purpose of establishing military discipline. In the case of crimes committed against those of a relatively lower rank, there were no provisions for particularly aggravated punishment. The crime of cruelty by abuse of power, which punishes cases where officers abuse their power and commits harsh acts, has been in place since the enactment of the Military Criminal Act, but the provision of cruelty by use of force, which punishes harsh acts between soldiers, was only passed by the National Assembly in 2009, about 50 years after the Military Criminal Act was enacted in 1962.

Article 62, Paragraph 2 of the Military Criminal Act stipulates that ‘any person who uses force to habitually abuse or mistreat soldiers through assault, threats, or similar methods shall be punished by imprisonment for not more than five years.’ Here, the interpretation of power is difficult to equate with the power of general criminal law applied among civilians. Power in criminal law is interpreted as ‘social and mental coercion to the extent of restricting the other person’s free will or actions.’ For example, when a boss uses his position to exert implicit pressure on a subordinate, if the victim is unable to refuse, power can be recognized.

On the other hand, the Military Criminal Act does not specify separate provisions regarding the components of force. Since the military is a special, controlled environment that requires strict hierarchy, there is room for power to be seen as always present. For example, in the military, even if a senior person says to a junior, “I don’t have a good attitude these days,” the junior can become anxious. This is because even ordinary words are accepted as orders that cannot be refused within the military. This also applies to non-verbal expressions of superiors, such as facial expressions, gestures, eye contact, and voice tone and intonation.

There is an actual incident that I experienced. The client was sent to the prosecution solely for the fact that he ‘suggested’ mental education, such as duck walking and an invisible chair, to his successor, who had moved in less than two months ago. As the atmosphere in the unit at the time was not heavy and the relationship with his successor was amicable, the client complained of being unfairly investigated by the police. My fellow lawyers, including the author, reviewed the correlation between the claims made by the client and the accuser as to whether or not they were powerful. In addition, based on the statements of his predecessors in the unit, he was able to assist in the case and end it with a non-indictment.

Kim Young-soo, a military lawyer at Daeryun Law Firm, said, "Like this, power under military criminal law can be interpreted abstractly during the investigation or trial process, so it has the limitation of ambiguous judgment standards. To solve this problem, it is necessary to organize the concept of power under military criminal law more systematically. For example, just as there is a difference depending on whether the saying "Would you like to take a lap around the playground?" is done by seniority or motivation, it is necessary to focus on the content. In addition, the existing relationship between the parties and the reaction of the victim at the time. “etc. must be comprehensively considered, and if there is a need to interpret it differently from the concept of power in general criminal law, the work of codifying this in the military criminal law should be carried out in parallel to prevent unnecessary misunderstandings and unfair punishments.”
 

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Use of force and cruelty, military lawyer's 'criteria for judgment' (go to)