The Supreme Court has ruled that a military captain who used profanity and made remarks such as "If he weren't a soldier, I would have beaten him" while referring to a superior in the presence of enlisted soldiers cannot be punished for the crime of insulting a superior.

The Supreme Court's Third Division (Presiding Justice Lee Sook-yeon) announced that it overturned the lower court's ruling, which had sentenced Captain A (32), indicted on charges of insulting a superior and assault, to one year in prison suspended for two years, and remanded the case to the Seoul High Court.

Captain A was indicted for insulting a superior after making remarks in November 2023 at his military unit's administration office—while 4 to 5 soldiers were present—referring to his superior, Major B, by using profanity and saying things such as, "He doesn't even know how the company is being run, yet he gives me a hard time."

Investigations showed that he made these remarks out of dissatisfaction with Major B's instructions.

He also made remarks referring to Major B, such as, "He forgets what he said an hour ago, does he have some kind of illness?"

In February of the following year, he was also charged with assaulting C by grabbing him by the collar within the military unit.

The first and second trials found Captain A guilty of the charge of insulting a superior regarding some of his remarks, as well as the assault charge, sentencing him to one year in prison suspended for two years.

However, the Supreme Court determined that the crime of insulting a superior was not established for Captain A's actions.

Article 64, Paragraph 2 of the Military Criminal Act stipulates that "a person who insults a superior by publicizing documents, drawings, or effigies, or by giving a speech or other public method, shall be punished by imprisonment with or without prison labor for not more than three years."

The Supreme Court explained that "the crime of insulting a superior is established only when a superior is insulted through public methods amounting to or corresponding to 'publicizing documents, drawings, or effigies, or giving a speech.'"

The court stated that the crime of insulting a superior is not established simply because a superior was insulted in a state recognizable by unspecified or multiple persons; rather, the means and method of the insult must possess publicness, akin to publicly posting documents or drawings.

This followed a Supreme Court Full Bench precedent issued in July.

At that time, the Full Bench overturned a 1999 Supreme Court precedent—which held that publicness alone established the crime of insulting a superior—after 27 years.

The Supreme Court stated on this day, "Captain A's remarks were merely heard by a few surrounding soldiers while working or passing by, and there is no evidence that they were delivered unilaterally and publicly, or expressed in a manner likely to be repeated, sustained, or spread among multiple soldiers in physical or virtual spaces," thereby determining that the charge of insulting a superior could not be applied to Captain A.

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