Assault between soldiers at a military base or facility and the complaint-only bar

1. 01Question

   Where a sergeant assaulted nine junior NCOs 31 times at a company living quarters, an automated firing range and a maritime training area, all of them military personnel and the places likely to be military bases or facilities under Article 2 of the Military Bases and Facilities Protection Act, had the court below to examine whether Article 60-6 of the Military Criminal Act barred the application of Article 260(3) of the Criminal Act?

2. 02Holding

   It had to. Since the offender and the victims were all military personnel and the locations were likely military bases or facilities, the court below had to examine whether Article 60-6 of the Military Criminal Act excluded Article 260(3) of the Criminal Act. Dismissing the charges on Article 260(3) without that examination was a misunderstanding of the law on complaint-only offences that left the necessary examination undone and affected the judgment.

   Points at issue, verbatim

   범행 당시 피고인과 피해자들은 모두 군인이었고, 범행 장소는 중대 생활관, 자동화 사격장, 해상훈련장 등으로서 군사기지 및 군사시설 보호법 제2조에서 규정한 군사기지 또는 군사시설일 가능성이 크므로, 원심으로서는 범행이 ‘군인이 군사기지, 군사시설에서 군인을 폭행한 경우’에 해당하여 군형법 제60조의6에 따라 형법 제260조 제3항의 적용이 배제되는지를 살펴보았어야 한다는 이유로

   Unofficial English translation

   At the time of the offenses, the defendant and the victims were all service members, and the places of the offenses were the company living quarters, an automated firing range, and a maritime training area, among others, and therefore were highly likely to be a military base or military facility as defined in Article 2 of the Military Bases and Facilities Protection Act; accordingly, the court below should have examined whether the offenses constituted 'a case in which a service member assaults a service member at a military base or military facility,' so that the application of Article 260(3) of the Criminal Act is excluded pursuant to Article 60-6 of the Military Criminal Act;

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심판결을 파기하고, 사건을 서울고등법원에 환송한다.

   Unofficial English translation

   The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.

4. 04Form of the test

   Existing test applied Read from the decision

   원심으로서는 이 부분 범행이 ‘군인이 군사기지, 군사시설에서 군인을 폭행한 경우’에 해당하여 군형법 제60조의6에 따라 형법 제260조 제3항이 적용되지 않는지를 살펴보았어야 한다.

   Unofficial English translation

   The court below should have examined whether these offenses constituted 'a case in which a service member assaults a service member at a military base or military facility,' so that Article 260(3) of the Criminal Act is not applied pursuant to Article 60-6 of the Military Criminal Act.

5. 05Factors

   • 부사관으로 군인인 피고인이 후배 부사관인 9명의 피해자들을 총 31회에 걸쳐 폭행하였다는 공소사실로 기소된 사안에서
   • 범행 당시 피고인과 피해자들은 모두 군인이었고
   • 범행 장소는 중대 생활관, 자동화 사격장, 해상훈련장 등으로서 군사기지 및 군사시설 보호법 제2조에서 규정한 군사기지 또는 군사시설일 가능성이 크므로
   • 이에 관하여 심리하지 않은 채 형법 제260조 제3항을 적용하여 공소를 기각한 원심판단에 반의사불벌죄 등에 관한 법리오해 등의 잘못이 있다고 한 사례

   Unofficial English translation

   • In a case where the defendant, a noncommissioned officer and a service member, was indicted on charges that he assaulted nine victims, who were junior noncommissioned officers, on 31 occasions in total,

   • At the time of the offenses, the defendant and the victims were all service members, and

   • the places of the offenses were the company living quarters, an automated firing range, and a maritime training area, among others, and therefore were highly likely to be a military base or military facility as defined in Article 2 of the Military Bases and Facilities Protection Act;

   • the present case is one where the judgment of the court below was held to be erroneous, on the ground of misapprehension of legal principles concerning, among others, offenses not subject to prosecution against the victim's will, in that it dismissed the public prosecution by applying Article 260(3) of the Criminal Act without conducting any examination on this matter

6. 06Relation to precedent

   Cannot be determined Not in the decision

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   What shows that a company living quarters, an automated firing range or a maritime training area is a military base or facility under Article 2 of the Military Bases and Facilities Protection Act, given that the Court said only that such places were likely to be one?

   The Seoul High Court's remand judgment finding whether each location was a base or facility and whether Article 60-6 barred Article 260(3) will show how the point is settled. A later decision on the meaning of Article 2(i), or an amendment to Article 60-6 or Article 260(3), requires this entry to be read again.

Read 2026-10-24 · Cross-read 2026-10-24. 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.