【Holding】
[1] Whether the crime of insulting a superior under Article 64(2) of the Military Criminal Act is established by insulting a superior in circumstances that can be perceived by unspecified or many persons (negative), and whether it is established only where a superior is insulted by "publicly posting documents, drawings, or effigies, or making a speech," or by a public method of a degree corresponding thereto (affirmative)
[2] In a case where the defendant, serving as the chief radar operator on a naval vessel, was indicted on the charge of insulting his superior A under the Military Criminal Act by becoming angry when A, a lieutenant who was the commanding officer and his superior, did not accept the defendant's opinion (engineering recommendation) regarding the vessel's entry into port, which the defendant had presented in the wheelhouse of the vessel while it was entering the base from sea, and saying, "The commander here is a mess. He doesn't even listen to recommendations," while three persons, including staff sergeant B, were listening, and taking off the headset he was wearing and throwing it onto the desk, the Court held that the defendant's conduct could not be regarded as insulting a superior by publicly posting documents, drawings, or effigies, or making a speech, or by a public method of a degree corresponding thereto, and thus did not constitute the crime of insulting a superior under Article 64(2) of the Military Criminal Act, and that the lower court, which held otherwise, erred in its misapprehension of legal principles regarding publicity in the establishment of the crime of insulting a superior
【Summary of Decision】
[1] [Majority Opinion] Article 64(2) of the Military Criminal Act provides that "A person who insults his or her superior by publicly posting documents, drawings, or effigies, or by making a speech or by any other public method, shall be punished by imprisonment with or without labor for not more than three years," thereby punishing it more heavily than the crime of insult under Article 311 of the Criminal Act, which provides that "A person who publicly insults another shall be punished by imprisonment with or without labor for not more than one year or by a fine not exceeding two million won."
Article 64(2) of the Military Criminal Act prescribes "any other public method" as an element of the crime of insulting a superior, and in this regard the Supreme Court held that the crime of insulting a superior under Article 64(2) of the Military Criminal Act is established by insulting a superior in circumstances that can be perceived by unspecified or many persons, and that the degree of publicity need not necessarily correspond to the method of publicly posting documents, drawings, or effigies, or making a speech (hereinafter "previous Supreme Court precedents").
Considering comprehensively the wording, structure, legislative form, legislative purpose, and protected legal interests of Article 64(2) of the Military Criminal Act, its harmony with the legal order as a whole, the balance of punishment, etc., the crime of insulting a superior under Article 64(2) of the Military Criminal Act cannot be regarded as established simply by insulting a superior in circumstances that can be perceived by unspecified or many persons; rather, it should be regarded as established only where a superior is insulted by "publicly posting documents, drawings, or effigies, or making a speech," or by a public method of a degree corresponding thereto. The specific reasons are as follows.
(A) ① The crime of insulting a superior under Article 64(2) of the Military Criminal Act punishes the act of insulting a superior "by publicly posting documents, drawings, or effigies, or by making a speech or by any other public method," thereby adopting a wording form entirely different from that of the crime of insult (Article 311 of the Criminal Act), the crime of defamation (Articles 307 and 308 of the Criminal Act), and the crime of defaming a superior (Article 64(3) and (4) of the Military Criminal Act), which concern acts of insulting or defaming another "publicly."
Lexically, "public" (gongyeonhada) means "clear and open to the extent that the whole world would know," and "method" means "means or manner adopted to carry out something or to achieve a purpose"; thus, a "public method" refers to "means or manner adopted for the purpose of making something known clearly and openly to the extent that the whole world would know." Accordingly, it is clear from the wording that a "public method" under Article 64(2) of the Military Criminal Act refers to means or manner of openly and clearly making known one's views, assertions, or opinions to unspecified or many persons.
As such, a "public method" under Article 64(2) of the Military Criminal Act is an element requiring that the means or manner of insult itself possess publicity, and it is a concept clearly distinguished from "publicly," which means circumstances that can be perceived by unspecified or many persons.
② The previous Supreme Court precedents interpreted the crime of insulting a superior under Article 64(2) of the Military Criminal Act as being established by insulting a superior in circumstances that can be perceived by unspecified or many persons, without the degree of publicity necessarily corresponding to the method of publicly posting documents, drawings, or effigies, or making a speech, and applied Article 64(2) of the Military Criminal Act even where a superior was publicly insulted. In other words, although insulting a superior by a public method, as required by Article 64(2) of the Military Criminal Act, and publicly insulting a superior are concepts clearly distinguished in wording, the precedents applied Article 64(2) without distinguishing between them.
Under the interpretation of the previous Supreme Court precedents, even cases where a superior is publicly insulted by a "non-public method" would be subject to Article 64(2) of the Military Criminal Act. An interpretation that does not distinguish between insulting by a public method and insulting publicly, even though they are clearly distinguished in the wording of the elements of the crime, interprets the meaning of "public method" to the detriment of the defendant and thus violates the principle prohibiting expansive interpretation, which is part of the principle of nulla poena sine lege.
(B) ① Article 64(2) of the Military Criminal Act adopts a so-called illustrative legislative form by giving "publicly posting documents, drawings, or effigies, or making a speech" as examples of methods of insulting a superior and then using the general term "by any other public method." Therefore, the individually enumerated illustrative provisions should serve as interpretive standards that can concretize the scope of application of the general provision, and the general provision should be interpreted as covering types of conduct that receive the same legal evaluation as the individually enumerated illustrative provisions or that are at least sufficiently similar to be predictable from them.
② In Article 64(2) of the Military Criminal Act, "document" means "something expressing a certain intention, idea, or thought by writing or symbols," "drawing" means "something expressing an intention or content by pictorial symbols," and "effigy" means "a figure made of wood, stone, metal, clay, etc. to which a particular belief or meaning is attributed." "Publicly posting" means "openly displaying certain content to make it widely known to the public," and "speech" means "stating one's views, assertions, or opinions before many people." As such, the specific examples given in Article 64(2) of the Military Criminal Act, namely "publicly posting documents, drawings, or effigies, or making a speech," by their nature belong to types of conduct by means likely to become widely known to unspecified or many persons owing to their high transmissibility, diffusibility, persistence, etc., in that unspecified or many persons can directly see or hear them. Accordingly, "any other public method," which is prescribed in parallel with "publicly posting documents, drawings, or effigies, or making a speech," can be regarded as referring to types of conduct of a degree corresponding thereto.
Therefore, "any other public method" should be interpreted as a method that receives the same legal evaluation as publicly posting documents, drawings, or effigies, or making a speech, or that is at least sufficiently similar to be predictable as such.
(C) ① Article 64(2) of the Military Criminal Act also has as its protected legal interests, in addition to the social evaluation of the superior, that is, external honor, the maintenance of a sound hierarchical order and chain of command in the military organization. The reason Article 64(2) of the Military Criminal Act separately provides for insulting a superior, even though the Criminal Act already contains a provision on the crime of insult (Article 311), is to deal sternly with such conduct because, where a superior is insulted by a public method, beyond the infringement of the superior's personal legal interest, the superior's authority in command and control is impaired, affecting the chain of command of the military organization, and there is a great risk that the sound hierarchical order and chain of command of the military organization will collapse. The interpretation and application of the elements of Article 64(2) of the Military Criminal Act must be carried out with such special purpose of the Military Criminal Act in mind.
② In the military organization, where the hierarchical order of obedience to superiors is clear and strict discipline and control are exercised, insulting expressions toward a superior may arise in various situations, such as temporarily making insulting remarks or gestures while expressing dissatisfaction with a superior's instructions, or expressing negative and critical feelings, such as complaints, by swearing at or speaking ill of a superior during private conversations with officers, soldiers, or peers in barracks living quarters, lounges, smoking areas, etc., unrelated to military command and control or the military system.
Considering comprehensively such various situations, the special nature of the military, the special purpose of the Military Criminal Act, etc., the purport of prescribing the act of insulting a superior "by a public method" as an element of the crime of insulting a superior under Article 64(2) of the Military Criminal Act is not to punish insults made in private conversations, which can be sufficiently regulated by crimes concerning personal legal interests, or ordinary insults that are not made by a "public method" and merely have a possibility of being spread.
③ Where a superior is insulted by a public method of a degree corresponding to publicly posting documents, drawings, or effigies, or making a speech, owing to the attributes of such method, such as high transmissibility, diffusibility, and persistence, the scope of disclosure expands beyond ordinary cases and the degree of infringement of the superior's external honor increases, and as the superior's external honor is openly, repeatedly, and continuously infringed in front of numerous soldiers, the superior's authority in command and control is impaired, giving rise to the risk of collapse of the chain of command. The purport of Article 64(2) of the Military Criminal Act in requiring a public method is to punish sternly only insults by such public methods that greatly affect the maintenance of a sound hierarchical order and chain of command in the military organization.
(D) ① Article 64(2) of the Military Criminal Act provides that "A person who insults his or her superior by publicly posting documents, drawings, or effigies, or by making a speech or by any other public method, shall be punished by imprisonment with or without labor for not more than three years," and Article 64(3) of the Military Criminal Act provides that "A person who defames his or her superior by publicly alleging facts shall be punished by imprisonment with or without labor for not more than three years," so that the statutory penalties are the same.
The Military Criminal Act, recognizing the gravity of the infringement of legal interests and the high degree of wrongfulness of the conduct in insulting a superior "by publicly posting documents, drawings, or effigies, or by making a speech or by any other public method," punishes it with the same statutory penalty as the crime of defaming a superior by alleging facts, for which the statutory penalty is aggravated because the degree of wrongfulness and the result of infringement of legal interests are heavier than those of ordinary insults.
② The elements of Article 64(2) of the Military Criminal Act have been maintained almost unchanged from its enactment on January 20, 1962 to the present. The Military Criminal Act originally punished only acts of insulting a superior in Article 64(1) and (2), and when it was amended on December 16, 1963, newly establishing provisions in paragraphs (3) and (4) of the same Article punishing acts of defaming a superior by publicly alleging true or false facts, it did not amend the wording of Article 64(2) into the same form and structure as the crimes of insult and defamation under the Criminal Act. Thereafter, the Military Criminal Act underwent general amendments in keeping with the times, such as newly establishing "Chapter XV Crimes of Rape and Indecent Act" on November 2, 2009 and introducing provisions for aggravated punishment of sexual violence crimes against soldiers, etc., but even in that amendment process, only the wording of Article 64(2) was revised, and its content has remained the same to date.
In light of the history of the enactment and amendment of the Military Criminal Act, it can be seen that the legislature intended Article 64(2) of the Military Criminal Act to make not only the fact that the person insulted is a "superior" but also the method of insult, namely a "public method," an element for aggravated punishment, and this should be fully considered in interpreting Article 64(2) of the Military Criminal Act.
(E) ① Even if Article 64(2) of the Military Criminal Act cannot be applied to punish insults against a superior made by a non-public method, no gap in punishment arises. This is because, where an act of insulting a superior is committed publicly, the actor can be punished for the crime of insult under Article 311 of the Criminal Act, and appropriate disciplinary action may also be taken separately.
② Even in comparison with foreign examples, it is difficult to find a justification for specially punishing the act of publicly insulting a superior by subjecting it to aggravated punishment under the Military Criminal Act rather than the general Criminal Act.
③ The statutory penalty under Article 64(2) of the Military Criminal Act is imprisonment with or without labor for not more than three years, which is higher than the statutory penalty of imprisonment with or without labor for not more than two years under Article 64(1) of the Military Criminal Act, which punishes "a person who insults his or her superior in the superior's presence." An insult against a superior made in everyday conversation with a few people nearby in a place where the superior is not present can hardly be evaluated as generally involving greater wrongfulness of conduct than an insult made directly in the superior's presence; recognizing such conduct as an insult by a "public method" and punishing it under the crime of insulting a superior under Article 64(2), which is heavier than the crime of insulting a superior under Article 64(1) of the Military Criminal Act, may cause an imbalance in punishment.
Ultimately, regarding only insults against a superior made by a public method of a degree corresponding to the methods illustrated in Article 64(2) of the Military Criminal Act as falling within the scope of punishment of that provision is a harmonious interpretation that resolves the above imbalance and further seeks a balance between punishment and the nature of the crime and culpability with respect to the provision, which prescribes only imprisonment with or without labor.
[Separate Opinion by Justice Cheon Dae-yup, Justice Oh Seok-jun, Justice Um Sang-phil, Justice Shin Sook-hee, and Justice Park Young-jae] Applying the crime of insulting a superior under Article 64(2) of the Military Criminal Act to punish insults against a superior made in private conversations, etc. that have no effect on the maintenance of a sound hierarchical order and chain of command in the military organization is unjust, as it excessively infringes the constitutional freedom of expression to which soldiers, as members of the general public, are naturally entitled. In this sense, the Separate Opinion fully shares the Majority Opinion's basic concern of seeking to reasonably limit the scope of punishment of the crime of insulting a superior under Article 64(2) of the Military Criminal Act.
However, the legal principle of the previous Supreme Court precedents, which held that in the crime of insulting a superior under Article 64(2) of the Military Criminal Act the degree of publicity of the relevant conduct need not necessarily correspond to the method of publicly posting documents, drawings, or effigies, or making a speech, is basically sound in that it respects the intent of the legislature, which adopted the open and comprehensive legislative form of "any other public method," constitutes an interpretation faithful to the protected legal interest of maintaining military discipline amid the changing realities of the military, and is consistent with the systematic coherence among crimes concerning honor. Therefore, it is difficult to agree with the Majority Opinion's methodology of reducing the scope of punishment of the crime of insulting a superior by restrictively interpreting the meaning of "any other public method" through changing this part of the precedents.
Since the protected legal interest of the crime of insulting a superior under Article 64(2) of the Military Criminal Act ultimately lies in the maintenance of a sound hierarchical order and chain of command in the military organization for national security, whether such protected legal interest is infringed should be the most important criterion in reasonably limiting the scope of punishment as well. That is, even conduct that may be regarded as publicly insulting a superior should not be regarded as constituting the crime of insulting a superior under Article 64(2) of the Military Criminal Act where it is difficult to regard the sound hierarchical order and chain of command of the military organization as having been directly and concretely infringed thereby. The Separate Opinion differs from the Majority Opinion in that the reasonable setting of the scope of punishment of the crime of insulting a superior under Article 64(2) of the Military Criminal Act should be made from such a perspective based on the protected legal interest.
[2] In a case where the defendant, serving as the chief radar operator on a naval vessel, was indicted on the charge of insulting his superior A under the Military Criminal Act by becoming angry when A, a lieutenant who was the commanding officer and his superior, did not accept the defendant's opinion (engineering recommendation) regarding the vessel's entry into port, which the defendant had presented in the wheelhouse of the vessel while it was entering the base from sea, and saying, "The commander here is a mess. He doesn't even listen to recommendations," while three persons, including staff sergeant B, were listening, and taking off the headset he was wearing and throwing it onto the desk, the Court held as follows: the defendant, having presented his opinion to A several times regarding the vessel's entry into port, impulsively and on a one-off basis blurted out his dissatisfaction or anger toward his superior or expressed it by throwing the headset when A did not accept it, and the three persons including B merely happened to hear the defendant's remarks or witness his conduct while each performing their own duties beside the defendant; the defendant's insult against A was not a unilateral and open communication of his views, assertions, or opinions made by stepping forward before the three persons including B, nor was it expressed by a method likely to be repeated, continued, or spread among numerous soldiers in physical or virtual space. In light of these circumstances, the defendant's conduct could not be regarded as insulting a superior by publicly posting documents, drawings, or effigies, or making a speech, or by a public method of a degree corresponding thereto, and thus did not constitute the crime of insulting a superior under Article 64(2) of the Military Criminal Act; nevertheless, the lower court, which upheld the first instance judgment finding the facts charged guilty on a different view, erred in its misapprehension of legal principles regarding publicity in the establishment of the crime of insulting a superior.
【Referenced Statutes】
[1] Articles 12(1) and 21 of the Constitution; Article 64 of the Military Criminal Act; Articles 1(1), 307, 308, and 311 of the Criminal Act [2] Article 64(2) of the Military Criminal Act
【Referenced Precedents】
[1] Supreme Court Decision 99Do3801, November 12, 1999 (Gong1999Ha, 2570) (overruled)
Supreme Court Decision 2013Do4555, December 12, 2013 (Gong2014Sang, 215)
(Source: Supreme Court Decision 2022Do5937, July 22, 2026 (en banc) | Judicial Information Disclosure Portal, Precedents)
2026. 10. 14. · By Attorney Dongwoo Shin
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