Defendant

Captain ( J.) Hyperbane

Law Firm East, Attorney Lee Jae-hoon

1. The defendant shall be punished by imprisonment for six months;

2.Provided, That the execution of the above sentence shall be suspended for one year from the date this judgment becomes final and conclusive;

3. Of the facts charged in the instant case, the charge of insult of superior on January 10, 2012 is acquitted.

On December 26, 2011, the Defendant: (a) connected a smartphone (opphone 4 type, mobile phone number omitted) owned by the Defendant in Songpa-gu Seoul ( Address omitted); (b) opened his Twitter account (www.twitter.com/○○○△△△△△△△△△△△△△△△) with the ID; (c) opened a twitter account (www.twitter.com/O○○○○○○○○○○○○○○○○○○○○△△△△△△△△△△△△△) with the Defendant’s twitter account; and (d) inserted the word “Woo-to-know will be able to damage the new airport, KTX, and tap water by taking the 14 trillion won into the Republic of Korea where the total known is insufficient; and (d) made an insult to his superior by the Defendant from December 26, 201 to April 12, 2012, using the Defendant’s smartphone or PC.

Each fact in the judgment

1. Any statement made by the defendant in compliance with this Act;

1. Statement prepared by the military prosecutor as to the suspect examination of accused prepared;

1. The description fit for the contents of the Twitter publication;

1. The images fit for the contents of twitter photographs, the contents of which are inserted, and photographs;

Since all of them can be recognized, there is evidence.

Article 36 of the Act on the Punishment of Criminal and Selection of Punishment

Article 64 (2) of the Military Criminal Act (Aggravated Definction of Superior and Selection of Imprisonment)

2. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of Concurrent Punishment for Punishment of Contempt of Superior on April 12, 2012)

3. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of Reasons for Sentencing favorable to the following)

1. Whether the President is a superior of a crime of insult of superior;

A defense counsel asserts that the President is a civilian who is not a soldier but a soldier, and the superior of the offense of insult under the Military Criminal Act is based on the premise that he/she is a soldier.

In general, the Military Criminal Act provides the superior of a soldier as the subject or object of an act in various forms of crimes, and it cannot be deemed that the purpose of which is to establish the order of deceptive scheme or chain of command inside the military is to be the object of the relationship between the public officials other than the military personnel. ② If the military personnel and the public officials other than the military personnel who are subject to an order can be the superior officer under the Military Criminal Act, a public official other than the military personnel can be the subordinate officer under the Military Criminal Act, while a public official other than the military personnel, who is the subordinate of a military personnel, is subject to a punishment under the Military Criminal Act because he is not subject to punishment according to the general punishment, or a public official who is not the subordinate of a military personnel, is merely subject to a minor punishment, or is merely subject to a minor punishment, and thus unfair and unfair, a public official other than a military personnel cannot be the superior officer, and ③ in the relationship between the military personnel and the public officials other than the military personnel who are not able to compare the rank and subordinate rank with the military personnel, the relationship between the rank and the rank.

However, Article 74 of the Constitution of the Republic of Korea, Article 6 of the Act on the Organization of the National Armed Forces provides that the President is the person having the authority to join the National Armed Forces. Article 8 of the Act on the Organization of the National Armed Forces and Article 28 of the Government Organization Act provides that the Minister of National Defense takes charge of military affairs under the order of the President. Article 2 Subparag. 4 of the Military Service Rule, which is a Presidential Decree, provides that “or a superior of the National Armed Forces, as a person having the authority to command and supervise military personnel, refers to the person having the authority to command and order from the person having the authority to directly direct the Armed Forces. Even if the President and the Minister of National Defense are not soldiers, it conforms to the legislative intent of the crime of insult of the military so that he can smoothly exercise his authority, and the crime of insult of superior is in line with the purpose of protecting the social assessment and reputation of his superior, and the State’s legal interest protected by the law is not only a relation between military personnel and the President and the civilian, who are not military personnel.

Therefore, it is reasonable to interpret that the President, who is the person with the authority to pass the national army, is included in his superior under the Military Criminal Law, so the above assertion by the defense counsel

2. Whether the contents of the article inserted in the Twitter do not violate the insult of the offense of insult and social norms

The defense counsel asserts that the expression of "pepeas", etc. is not a "defluence" of the offense of insult when comprehensively taking into account the background of the statement and the characteristic of the reference space. It does not constitute a "defluence" of the offense of insult, and even if it appears to be an insult, it does not violate social rules, since it is sufficiently acceptable in the general criticism process of the President's highest political person.

In light of the fact-finding, insult, etc., the Defendant expressed abstract judgment or sacriffic sentiment that could hinder people's social evaluation without mentioning a fact, and each expression used by the Defendant in the instant criminal facts constitutes an objective constituent element of insult, even if the Defendant expressed sacrine sacrine, "a sacrin," "a sacrin," and "sacrin sacrin sacrin," and "sacrin sacrin," in itself, it is clear that the Defendant expressed sacriffic sentiments against individuals, as the defense counsel's assertion.

Therefore, it is reasonable to view that the expression of insult of the criminal facts of this case goes beyond the scope permitted by social norms in light of the following: (a) whether the insulting expression of the criminal facts of this case does not contravene the social norms; and (b) in the case of the offense of insult of a superior under the Military Criminal Act, it is a requirement for the aggravated composition of the general criminal law to maintain the military's deceptive order and communication system with the subject of a superior as the principal; and (c) the content of the Defendant's writing is more than a factual criticism of the specific policy, rather than a factual criticism of the specific policy.

Therefore, each of the above defense counsel's arguments is rejected.

이 사건 공소사실 중 2012. 1. 10. 상관모욕의 점의 요지는 “피고인은 2012. 1. 10.경 자신의 집인 서울 송파구 (주소 생략)에서 피고인 소유의 스마트폰을 이용하여 자신의 트위터 계정에 ‘(아이디 생략)(@○○○△△△□□)’ 이라는 아이디로 접속한 후” 최악의 범죄자!! 어떻게 인간이 이런 일을? 회개하면 다 용서 되는건가? “라는 글을 게재하여 대통령인 상관을 모욕하였다”는 것이다.

In order to establish a crime of insult and insult, a superior subject to insult should be identified. In accordance with the description of the contents published in Twitter, it is difficult to view that the subject of insult was the President as having been specified on the ground that the Defendant’s Internet address was unknown even though the Defendant prepared such article and linked the Internet address thereafter, the content of the link’s Internet address was not revealed. However, it is insufficient to view that the description of the above evidence alone cannot be seen as having known who is referred from a reasonable perspective of the general public, and there is no other evidence to prove otherwise.

Therefore, the above facts charged constitute a case where there is no proof of crime, and thus, acquitted pursuant to the latter part of Article 380 of the Military Court Act

The Defendant, as a noncommissioned officer of special war officers, shall strictly punish the President, who is a military authorized official, in several times, by inserting a text of primary criticism and brutation on the Internet that allows access to the general public, inasmuch as he obstructs the military discipline and disturbs the command system, and does not seem to have an attitude contrary to the court. However, Twitter, in which the Defendant written his writing, is difficult to be exposed to the general public compared to other Internet services, rather than other Internet services, and the Defendant did not put a letter of insulting the President, who is a superior, no longer than after receiving related education from the commander, and the Defendant is found not guilty of some facts charged.

It is so decided as per Disposition for the above reasons.

[Attachment]

Administrative patent judges-presidential fung-man (Presiding Judge) fung-man (Presiding Judge)