군형법상 가혹행위죄의 구성요건에 관한 해석과 최근 하급심 판례의 경향

The Military Criminal Act had sternly imposed aggravated punishments for crimes against one’s superiors and on abuse of authority since the time of its enactment, whereas aggravated punishments had not been specifically imposed for the crimes of superiors against inferiors. In terms of the Military Criminal Act, the rules to penalize the “cruel treatment crimes caused by exercising authority” had not been prepared as the applicable provision to punish various anti-human right acts of superiors against inferiors, until its 14th amendment(2009). Concerning cruel treatments, the Supreme Court suggests a very limited set of interpretations, i.e. the “cases of imposing mental and physical sufferings that are difficult for human beings to endure.” This interpretation stems from the notion of cruel treatments prescribed by the Supreme Court with respect to the "cruel treatment crimes caused by abuse of power” about 40 years ago, which must be discarded or at least modified considering changes in the legal environment and in the public's perception of human rights. In this article, we will review the characteristics of cruel treatment crimes under the Military Criminal Act, which have been commonly used in practice, from the critical viewpoint, and consider how the criteria for judging cruel treatments should be amended, based on this. In addition, we intend to examine some of the lower instance precedents in the military court, which has convicted on cases where it was difficult to plead guilty to cruel treatments based on the criteria suggested by the previous Supreme Court precedents, with a new perspective and standards.