Defendant

Defendant and Military Prosecutor

Captain's New Constitution Intervention

Law Firm East, Attorney Lee Jae-hoon

Mads

Special Electric Command General Military Court Decision 2012Ra7 decided November 1, 2012

All appeals filed by the defendant and military prosecutor shall be dismissed.

1. Scope of the instant trial

When there are several orders for judgment, such as partial conviction and partial acquittal of a case prosecuted for concurrent crimes, part of the part contained in the one order may be appealed separately from other parts, and the part which both parties have not appealed shall be separately decided (see Supreme Court Decision 2010Do10985, Nov. 25, 2010).

On January 10, 2012, the lower court rendered a not-guilty verdict on the charge of insult of superior officers, and found the remainder of the facts charged guilty. On this basis, the military prosecutor appealeds only on the charge of unfair sentencing without filing an appeal, and thus, on January 10, 2012, which the lower court found the not-guilty verdict on the charge of insult of superior officers became final and conclusive.

2. Summary of grounds for appeal;

A. Defendant

1) Legal principles

Since superior officers under the Military Criminal Act are based on the premise of a soldier on active duty, the President cannot be the superior of the offense of insult, and the lower court convicted the President as a superior of the offense of insult. The lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2) misunderstanding of facts

The expression “ak,” “bin,” and “peats” can not be determined as an insult of the offense of insult in full view of the background of the statement, the characteristic of the space referred to, and the perception of the general public. It is difficult to see this as referring to the President. Even if it does not violate the social rules even if it is deemed a insult of a family affairs, the lower court recognized that it constitutes insult and is contrary to the social rules. In so determining, the lower court erred by misapprehending the legal doctrine or adversely affecting the conclusion of

(b) Military prosecutor;

In full view of the fact that the Defendant, despite being a military executive officer, posted several articles, thereby disturbing the military discipline and the command system, and that the Defendant did not seem to have an attitude against this case, the sentence imposed by the lower court is unreasonable.

3. Judgment on the grounds for appeal by the defendant

A. Whether the President constitutes a superior offense of insult of a superior

1) The judgment of the court below

Article 74 of the Constitution of the Republic of Korea, Articles 6 and 8 of the Act on the Organization of the National Armed Forces, and Article 28 of the Government Organization Act (amended by Act No. 11690, Mar. 23, 2013) provide that the President is the person having the authority to command the National Armed Forces, and 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 provides that "the Minister of National Defense takes charge of military affairs" refers to the person having the authority to command the head of the Armed Forces from the person having the authority to direct the National Armed Forces, and the head of the National Armed Forces and the Minister of National Defense with the authority to direct the military, even if the person is not a soldier, to facilitate the exercise of such authority, thereby promoting the establishment of a deceptive scheme or a chain of command inside the military so as to protect the social reputation and reputation of his superior, as well as to protect legal interests and interests of the State, other than military personnel, shall be included in the Military Criminal Act.

2) The judgment of this Court

A) The protected legal interest of the offense of insult under the Military Criminal Act

The military criminal law's offense of insult of superior officers is a social evaluation of superior officers, i.e., external reputation, and the military organization's order and the maintenance of the system is also a legal interest.

B) Legislative history

On January 20, 1962, the Military Criminal Act was enacted by Act No. 1003 on January 20, 1962, and the Military Criminal Act was enforced prior to the enactment of the Military Criminal Act. Article 14 of the National Defense Security Act provides for “the crime of influence to the superior” and Article 13 of the National Defense Security Act provides for “the crime of influence to the chief of the government, the number of seats, and the place of abandonment.” At that time, Article 2 Subparag. 2 of the National Defense Security Act provides that “the term “the term “oror of a superior” means an officer who requires the right to order in the relation of order, and even if there is no right to order, an officer who

Upon the enactment of the Military Criminal Act in 1962, the term "a superior" is defined as "a person who has the authority to issue an order from a person who is in a relationship with the order issued to his superior." Article 2 subparagraph 2 of the Military Criminal Act defines the term as "a set-off and a person in a relationship with the order issued to his superior" (Article 2 subparagraph 2 of the Military Criminal Act) and then the term as "a person in a relationship with the order issued to his superior is equivalent to his superior." As the Military Criminal Act was enacted, there was no penal provision, such as "a person in a position with the Government chief, an incidental seat, and a person in a position with no order issued,

C) Whether the superior of the offense of insult is included by the President

In addition to the previous crime of non-fluoring against superior officers of the National Defense Security Act (Article 14), the Defendant separateed “fluoring against the Government chief, incidental seat, and abandonment letter (Article 13),” but in the Military Criminal Act of 1962, the Military Criminal Act only remains, and the “fluoring against the Government chief, incidental seat, and abandonment letter,” was deleted. This asserts that the purport of the legislation that the civil officer would not be subject to a punishment against his/her superior is expressed.

Accordingly, since the enactment of the Military Criminal Act, the superior is defined as “a person who has the right to order ....” The superior, regardless of whether he/she is a civilian or military person, is a civilian. On the contrary, under the National Defense Security Act, his/her superior was limited to “ ........” On the other hand, it is determined that there was a separate provision on “an offense of non-componation against the chief of the Government, the incidental seat, and the head of the abandonment.” Therefore, upon the enactment of the Military Criminal Act, it is difficult to view that the legislation purpose of the Military Criminal Act was to punish the civilian superior without criminal punishment, and it is determined that the superior, regardless of the civilian or military person, regardless of whether he/she has the right

Accordingly, examining whether the president is a superior under the Military Criminal Act, Article 2 subparag. 1 of the Military Criminal Act provides that “A superior refers to a person who has the authority to issue an order in the context of the command-type relationship. A superior officer and a superior officer in the case of absence of the command-type relationship shall be equivalent to his/her superior.” Here includes either a command-type relationship or a set-off and/or ranking (see Supreme Court Decision 75Do3608, Feb. 10, 1976). Article 74 of the Constitution of the Republic of Korea, and Article 6 of the Act on the Organization of the National Armed Forces provides that the President can pass through the Armed Forces. Article 8 of the Act on the Organization of the National Armed Forces provides that the Minister of National Defense takes charge of military affairs under the command of the President. According to Articles 9 and 10 of the Act on the Organization of the National Armed Forces, the Chief of Staff and each Chief of Staff of the Armed Forces specifically regulate the command-related relationship between the President and the National Armed Forces.

In addition, Article 2 Subparag. 4 of the Military Service Rule provides that “The term “the term “the term “grade” means a person who has the authority to issue an order among persons who are in a subordinate relationship with the order and who is the direct superior from the person with the authority to issue an order.” The term “the term “the term “the term “grades” refers to the person with the authority to issue an order from the authority to the direct superior” refers to the term “the term “the term “the term “person with the authority to issue an order,”” and “the term “the term “the term “the term “person with the authority to issue an order,” and Article 2(4) of the Military Service Rule was partially amended on September 29, 2009,” and specifically stated the definition of superior “the term “the term “from the authority to issue an order to the national army and the immediately superior,” and Article 2 subparag. 4 of the Military Service Rule provides that the term “the term “the term “the person with the authority to issue an order and the meaning of the superior,” need to interpret the above Military Service Rule.

As above, considering the legal interest of the offense of insult and the systematic interpretation of the legislative history norm, the superior of the offense of insult is bound to be interpreted as including the President. Therefore, the defendant's assertion that the superior of the offense of insult means only a soldier is without merit.

Therefore, the court below is just to determine that the President constitutes a superior of a crime of insult, and there is no error of law by misunderstanding the legal principles as pointed out in the grounds of appeal.

C. Whether the offense constitutes insult or contravenes social norms

1) Relevant legal principles

The offense of insult referred to in the crime of insult refers to the expression of an abstract judgment or sacrific sentiment that may undermine a person’s social evaluation without mentioning any fact. Even in a case where a certain article contains especially insulting expressions, if such expressions can be deemed an act that does not contravene the social norms in light of the sound social norms of the time, illegality shall be exceptionally dismissed pursuant to Article 20 of the Criminal Act (see Supreme Court Decision 2008Do1433, Jul. 10, 2008). Moreover, an act that does not violate the social rules refers to an act that may be permissible in light of the overall legal order or the social ethical sentiment or social norms surrounding it, and thus, it shall be determined individually and reasonably based on specific circumstances where a certain act does not violate the social rules (see Supreme Court Decision 2001Do5380, Jun. 10, 2004).

2) The judgment of this Court

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the lower court, among the facts charged of the insult of superior on January 6, 2012, the expression “Akh news” among the facts charged of the insult of superior on January 7, 2012, “Ah scar scar scar scar scar scar scar scar sa,” and on January 18, 2012, the term “sar scar scar spas” among the facts charged of the insult of superior on January 18, 2012 appears to refer to the President, and in other facts charged, the expression “sar sar sar spas” is also deemed to refer to the term “sar sar scar scar scar scar scar scar sa.”

In addition, examining whether the Defendant’s such Twitter writing is contrary to the social norms, the Defendant’s insulting speech is not a temporary statement, but a continuous and repeated statement, the fact that the Defendant’s insulting speech was made solely with the intent to damage the presidential status and evaluation rather than a policy secret statement, the Defendant’s expression is a lineal ascendant or descendant, and the degree of light is high. The Defendant’s behavior, a soldier on active duty, constitutes a insult against his superior under the Military Criminal Act, not a insult against the President’s individual. The offense of insult is not subject to the protection of the external reputation, namely, the protection of the law and order of the military organization as well as the maintenance of the military traffic system, and the offense of insult is also protected by the law and order of law without any need to be considered as a crime of insult in the course of performing his duties (see, e.g., Supreme Court Decision 196Do1660, Jul. 16, 197). 196.

Therefore, the defendant's appeal that the defendant's Twitter publication is not a referring to the President, cannot be viewed as insult, and that it does not go against the social rules is without merit.

D. Whether to recognize illegality

The Defendant asserts that the president, referred to in Twitter content, is not the president as a military person, but the president as a person in charge of the operation of the State and the president as a person in charge of the highest power in the elected position, and that he did not criticize the president as a person in charge of military administration, but did not recognize that his superior under the Military Criminal Act was punished under the Military Criminal Act, considering that he was the Minister of National Defense.

As seen earlier, the superior of the crime of insult of a superior is included in the President, and it does not punish only a person related to the military as a matter of duty, but punish a person related to a superior regardless of a private or public matter (see, e.g., Supreme Court Decision 67Do1019, Sept. 26, 1967). Thus, even if a statement to the President, who is a superior, was made in an unrelated manner with the number of the military forces, it may be deemed a crime of insult of a superior if the statement was made in an insulting manner. In the establishment of such crime, it is sufficient to recognize that the crime was committed against the social justice and cooking, and it does not require recognition of the specific provision of the law (see, e.g., Supreme Court Decision 86Do2673, Mar. 24, 1987).

Therefore, if we examine the judgment by the evidence duly adopted in the court below and the court below, the defendant was aware that he was a military prosecutor. In light of the defendant's age, status, career, etc., it is reasonable to deem that the insulting speech was aware that it was in violation of social justice and sound reasoning, such as the offense of insult, defamation, or violation of political neutrality obligations. In full view of the above, the defendant's above assertion is without merit.

Even though the defendant's superior to the Military Criminal Act includes the President or was unaware that his act can be punished under the Military Criminal Act, it is merely a mere legal site and it cannot be viewed as a case that constitutes Article 16 (Misunderstanding of Law) of the Criminal Act (see, e.g., Supreme Court Decisions 90Do126, Oct. 30, 199; 95Do1891, Dec. 12, 1995).

Therefore, there is no reason to believe that the defendant did not recognize the illegality of his act.

4. Judgment on the grounds for appeal by the military prosecutor

As the military prosecutor asserts that the sentence imposed by the court below is unreasonable, it is necessary to seriously judge the law in light of the following: (a) as the defendant asserts that the punishment imposed by the court below is unfair; (b) the defendant, as a military executive officer, posted an insulting article to the president who is superior in several times; (c) the defendant appears to have had the intention to insult the president from the time of opening the Twitter account using the Twitter account; and (d) the defendant's refusal to reflect it, etc. However, the defendant was the first offender; (c) the defendant was unaware of the awareness that he could be punished due to his own act at the time of the instant case; (d) the defendant was working in good faith for the military life for a total of 14 years; and (e) other sentencing conditions expressed in the instant case, such as the defendant's age, character, character and environment, etc., which are too unreasonable, and thus, the above argument of unfair sentencing by the court below is unreasonable.

5. Conclusion

Thus, the appeal filed by the defendant and the military prosecutor is clearly without merit. Thus, the appeal filed by the defendant and the military prosecutor is dismissed in accordance with Article 430(1) of the Military Court Act.

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

Senior Colonel-Colonel (Presiding Judge) of the Armed Forces of the Republic of Korea (Presiding Judge) and Senior Colonel-Colonel (Presiding Judge)

1) ○○○ appears to indicate the president of Lee Jong-young, and △△△△△○ appears to indicate his her son and descendant for △△△△△.