Supreme Court Rules Insulting Superior Cannot Be Punished Solely Based on Public Utterance

The Supreme Court has ruled that the crime of insulting a superior cannot be established solely on the ground that the insult was committed in a state where unspecified or multiple persons could perceive it.

The court limited the scope of punishment, stating that even if a superior is insulted, prosecution under the Military Criminal Act is possible only when the "method of insult" is public in nature, such as publicly posting documents, drawings, or statues, or giving a speech.

The Supreme Court en banc, presided over by Justice Lee Heung-goo, overturned the lower court ruling that had convicted a defendant identified as A on charges of insulting a superior, and remanded the case to the Seoul High Court today (July 22).

A, a Navy sergeant, was indicted on charges of telling Captain B, a superior, "The command here is a mess. You don't even listen to recommendations" and throwing off his headset after Captain B rejected his suggestions multiple times while entering a base in October 2019.

Article 64, Paragraph 2 of the Military Criminal Act, which was applied to A, stipulates that "a person who insults a superior by publicly displaying [gongsi] documents, drawings, or idols, or by speech or other public methods, shall be punished by imprisonment or labor without prison labor for not more than three years."

The key issue was how to interpret "other public methods" in the provision regarding the insult of a superior.

Publicness refers to a state recognizable by an unspecified person or multiple persons.

The en banc court ruled on this day that the crime is not established by the mere requirement of publicness—meaning simply insulting a superior in a state recognizable by unspecified or multiple persons.

The court determined that the crime is established only when the "method of insult" corresponds to or is equivalent to the examples listed in the first part of the legal provision, such as "publicly displaying documents, drawings, or idols, or giving a speech."

This overrules the 1999 Supreme Court precedent that held that the crime of insulting a superior was established based on publicness alone.

The seven justices in the majority explained that the "public method" under the Military Criminal Act means that the means and manner of the insult must possess public attributes, which is distinct from "publicly" [gongonhi], which simply signifies a state where unspecified or multiple persons can perceive it.

The previous precedent interpreted the meaning of a "public method" in a direction disadvantageous to the defendant, which the court found to be in violation of the principle of legality.

The majority explained that the purpose of requiring a public method as an element in the provision is to strictly punish insulting acts that significantly affect the maintenance of sound hierarchical order and command systems within the military organization.

Insulting through methods such as documents or pictures increases the degree of infringement on a superior's external honor due to high propagation and diffusion potential, and can create a risk of undermining authority and collapsing the command system.

The court noted that even if the insult does not take such forms, it can still be punished under the general Criminal Act as the crime of insult, meaning there is no imbalance in punishment.

In this particular case, because A's remarks were merely heard or witnessed by soldiers present at the scene at the time, the court judged that he cannot be punished under the crime of insulting a superior.

Meanwhile, Justices Chun Dae-yeop, Oh Seok-joon, Eom Sang-pil, Shin Sook-hee, and Park Young-jae expressed a concurring opinion. While agreeing with the majority's intent to reasonably limit the scope of punishment, they stated that "whether there is an infringement on the legal interests protected" should be the most important criterion regarding such limitations.

They stated, "Insulting acts can appear in various forms such as speech, writing, pictures, and behavior, and their patterns constantly change according to shifts in the social environment," adding, "The majority opinion, which restricts the interpretation of public methods, is bound by the wording from the enactment of the Military Criminal Act about 60 years ago and fails to keep pace with changes and developments in the times, running counter to the trend of information technology."

They argued that if the Military Criminal Act could no longer be applied even in cases where the need for regulation through the act is extremely high—such as a subordinate soldier making obscene expressions targeting a female superior as a sexual object while unspecified or multiple soldiers are listening—it would be difficult to achieve the legislative intent pursued by the Military Criminal Act.

(Photo: Provided by Yonhap News TV, Yonhap News)
※ Please note: This article was translated by AI and may contain errors.