Open Decision Ledger · Military criminal & justice law
Victim's sole statement, a contradictory defence, and force in military rape
Supreme Court, Mar. 31, 2022, 2018Do19037 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 군인등강간치상
Official text on the National Law Information Center
Question
Where the victim's statement is in substance the only evidence in a rape charge, may the defendant's account being unreasonable under the rules of experience and self-contradictory support the credibility of that statement or combine with it as an indirect circumstance, and how is the force or threat required for the offence judged?
Holding
The Court held that such a circumstance does not itself become direct evidence of the charge, but may, under the judge's free evaluation, support the credibility of the victim's statement or combine with it as an indirect circumstance. It also held that force or threat is judged on all the circumstances, by reference to the victim's concrete situation at the time of intercourse, and not by asking afterwards whether she could have left the scene or failed to resist with all her strength. Applying those rules, it found the statement credible and force and the defendant's intent established, and reversed the acquittal.
Points at issue, verbatim
강간죄에서 공소사실을 인정할 증거로 사실상 피해자의 진술이 유일한 경우, 피고인의 진술이 경험의 법칙상 합리성이 없고 그 자체로 모순되어 믿을 수 없다는 사정이 피해자 진술의 신빙성을 뒷받침하거나 직접증거인 피해자 진술과 결합하여 공소사실을 뒷받침하는 간접정황이 될 수 있는지 여부(적극)
Unofficial English translation
Where, in a rape case, the victim's statement is virtually the only evidence supporting the facts charged, whether the circumstance that the defendant's statement is not rational under the rules of experience and is self-contradictory and thus not credible may support the credibility of the victim's statement or serve as circumstantial evidence that, combined with the victim's statement as direct evidence, supports the facts charged (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 고등군사법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the High Military Court.
Form of the test
Circumstances weighed Stated in the decision
그 폭행·협박의 내용과 정도는 물론 유형력을 행사하게 된 경위, 피해자와의 관계, 성교 당시와 그 후의 정황 등 모든 사정을 종합하여 피해자가 성교 당시 처하였던 구체적인 상황을 기준으로 판단하여야 하고
Unofficial English translation
not only the content and degree of such assault or threat but also all circumstances, such as the process by which the physical force came to be exercised, the relationship with the victim, and the circumstances at the time of and after the sexual intercourse, must be determined on the basis of the specific situation in which the victim was placed at the time of the sexual intercourse, and
Factors
- 형사재판에서 유죄로 인정하기 위한 심증 형성의 정도
- 피해자 등 진술의 신빙성을 판단할 때 유의하여야 할 사항
- 피고인의 진술이 경험의 법칙상 합리성이 없고 그 자체로 모순되어 믿을 수 없다는 사정이
- 강간죄가 성립하기 위한 가해자의 폭행·협박이 있었는지 판단하는 기준
Unofficial English translation
• The degree of formation of the court's conviction necessary to find a defendant guilty in a criminal trial
• Matters to be mindful of when assessing the credibility of statements by the victim, etc.
• the circumstance that the defendant's statement is not rational under the rules of experience and is self-contradictory and thus not credible is
• The standard for determining whether the assailant's assault or threat necessary for the crime of rape was present
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 10. 25. 선고 2018도7709 판결(공2018하, 2294)
Unofficial English translation
Supreme Court Decision 2018Do7709 decided October 25, 2018 (Gong 2018 Ha, 2294)
Decisions referred to
[1][2][3] 대법원 2018. 10. 25. 선고 2018도7709 판결(공2018하, 2294) / [1] 대법원 1994. 9. 13. 선고 94도1335 판결(공1994하, 2695), 대법원 2004. 6. 25. 선고 2004도2221 판결(공2004하, 1290), 대법원 2006. 11. 23. 선고 2006도5407 판결 / [3] 대법원 2005. 7. 28. 선고 2005도3071 판결(공2005하, 1469)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the defendant's account is internally consistent and no third party learned of the incident at the time, how much independent weight may the victim's statement bear on its own?
The retrial by the High Military Court of Military Affairs, which had not examined whether the rape caused the injury alleged, will show how the credibility and force findings are carried through to the offence of a soldier raping and injuring another. Any later decision revising when a contradictory account of the accused may serve as an indirect circumstance supporting the victim's credibility would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the defendant's account is internally consistent and no third party learned of the incident at the time, how much independent weight may the victim's statement bear on its own?” vs Independent “Did the rape cause the injury required for the charged offense of rape causing injury against a service member?”
The primary asks how much independent weight the victim's statement may bear where the defendant's account is consistent and no third party knew, while the independent reading asks whether the rape caused the injury required for the charge.
강간죄에서 공소사실을 인정할 증거로 사실상 피해자의 진술이 유일한 경우, 피고인의 진술이 경험의 법칙상 합리성이 없고 그 자체로 모순되어 믿을 수 없다는 사정이 피해자 진술의 신빙성을 뒷받침하거나 직접증거인 피해자 진술과 결합하여 공소사실을 뒷받침하는 간접정황이 될 수 있는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The High Military Court of Military Affairs, in its judgment of 8 November 2018 (2018No177), overturned the first-instance conviction and acquitted the defendant. It reasoned that the victim's account rested on memories formed about seven years after the event and contained contradictions and details at odds with objective circumstances, so her memory itself could not be trusted, while the defendant's contrary account was likely true on the objective record. Even if her statement were credible, holding the upper part of her arms was not force making resistance impossible or markedly difficult, and no intent to suppress her resistance was shown.
Supreme Court standard: The Supreme Court held that rejecting the credibility of the victim's account on those grounds alone departed from the limits of free evaluation and breached the rules of logic and experience. It pointed to the consistent account of the core course of events, the defendant's own admission that he kissed the complainant on the bed, the specific statements of Persons 1, 2 and 3, and the defendant's account, which is inconsistent in context and unreasonable under the rules of experience, as matters that may serve as an indirect fact supporting credibility. On force, it held that the sudden act of pressing down the complainant and kissing her against her clearly expressed refusal, together with her position as a junior officer with no choice but to obey her commander and her mental and physical helplessness, amounted to physical force making resistance markedly difficult, and that the defendant's intent was established; it reversed the judgment and remanded the case.
Distinguishing conditions
- A victim's statement whose main parts are not consistent through the investigation and the trial, or which is unreasonable under the rules of experience or self-contradictory.
- A defendant's account that is internally consistent and plausible under ordinary common sense, so that it supplies no indirect fact supporting the complainant's credibility.
- A case where the only grounds against the violence are that the complainant could have left the scene or did not resist with all her strength, since the Court refused to decide on those alone.
Record verification notes
Gather first what corroborates the complainant's account: contemporaneous reports to colleagues or superiors, the circumstances in which she came to make the complaint, and any admission by the accused. Test the defendant's account for internal consistency and conformity to the rules of experience before relying on it as an indirect circumstance. Judge the violence by her concrete situation at the time, including the rank relationship and any state of helplessness, rather than by her conduct afterwards.
From the official text
Points at issue
[1] 자유심증주의의 의미와 한계 / 형사재판에서 유죄로 인정하기 위한 심증 형성의 정도 / 피해자 등 진술의 신빙성을 판단할 때 유의하여야 할 사항 [2] 강간죄에서 공소사실을 인정할 증거로 사실상 피해자의 진술이 유일한 경우, 피고인의 진술이 경험의 법칙상 합리성이 없고 그 자체로 모순되어 믿을 수 없다는 사정이 피해자 진술의 신빙성을 뒷받침하거나 직접증거인 피해자 진술과 결합하여 공소사실을 뒷받침하는 간접정황이 될 수 있는지 여부(적극) [3] 강간죄가 성립하기 위한 가해자의 폭행·협박이 있었는지 판단하는 기준
Unofficial English translation
[1] Meaning and limits of the principle of free evaluation of evidence / The degree of formation of the court's conviction necessary to find a defendant guilty in a criminal trial / Matters to be mindful of when assessing the credibility of statements by the victim, etc. [2] Where, in a rape case, the victim's statement is virtually the only evidence supporting the facts charged, whether the circumstance that the defendant's statement is not rational under the rules of experience and is self-contradictory and thus not credible may support the credibility of the victim's statement or serve as circumstantial evidence that, combined with the victim's statement as direct evidence, supports the facts charged (affirmative) [3] The standard for determining whether the assailant's assault or threat necessary for the crime of rape was present
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 고등군사법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the High Military Court.
Provisions referred to
[1] 형사소송법 제308조 [2] 형법 제297조, 군형법 제92조, 형사소송법 제307조, 제308조 [3] 형법 제297조, 군형법 제92조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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