(영문) 고등군사법원 2015. 7. 14. 선고 2015노200 판결

In relation to the offense of insult, in order to establish the offense of insult of a superior, the elements of the offense of insult require “public performance” as the element of the offense of insult, and since people around the victim at the time of the Defendant’s abusiveation are not recognized as a small number of public performance, the offense of insult

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment, two years of suspended execution) is too unreasonable.

(b) Grounds for appeal by a military prosecutor;

The sentence sentenced by the court below is too uneasible and unfair.

2. Determination on the grounds for appeal

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) As to the argument that the victim is not a superior and that the defendant is not a superior

The following facts and circumstances are recognized in full view of the evidence duly adopted and examined by the court below and the defendant's statements at the court of the trial.

The superior, which is the object of the crime against superior officers under the Military Criminal Act, is included in both normal and quasi-ranking officers. Even if the superior officer is only a person in charge of performing his duties at the time, regardless of whether the crime was affected by the formation of the crime and wearing uniforms even if the person was done at the deceased seat without any need to perform his duties (see, e.g., Supreme Court Decisions 2013Do455, Dec. 12, 2013; 67Do1019, Sept. 26, 1967). At the time of the instant crime, the Defendant was enlisted as active soldier, who was hospitalized in the Armed Forces○ Hospital, and was serving as nursing officer at the above military hospital. The Defendant was aware that the Defendant was hospitalized in the military hospital and was serving again at the military hospital. The Defendant was aware that the Defendant was the victim at the time when the Defendant was hospitalized, and the Defendant was serving at the military hospital.

In full view of these facts and circumstances, it is clear that the victim is the superior of the defendant, and it is recognized that the defendant was aware that the victim was his superior at the time of the crime of this case, and therefore, this part of appeal by

2) As to the assertion that there is no public performance of the offense of insult of his superior

In order to establish a crime of insult of superior under Article 64(1) of the Military Criminal Act, the Defendant asserts that “publicly insulting” is the same as the offense of insult under Article 311 of the Criminal Act. However, unlike Article 311 of the Criminal Act, Article 64(1) of the Military Criminal Act only punishs his superior simply “in the presence of a person,” and does not include “public insulting.” Thus, insofar as the Defendant’s insult of a victim without public performance is recognized as having committed a crime before the victim, the establishment of the crime of insult of superior under Article 64(1) of the Military Criminal Act is not affected. Accordingly, the Defendant’s appeal on this part is without merit.

3. Determination on the assertion of unreasonable sentencing by the Defendant and the military prosecutor

Although the Defendant brought an injury to a victim who is a superior solely on the ground that the victim was friendly against her fellows or other patients, the reason behind the victim’s death in the course of investigation and trial was not memory, and the Defendant did not think of the victim as his superior until the time of the trial. Despite the fact that the instant crime was committed inside the military hospital, the Defendant did not think of the victim as his superior, and the Defendant did not divided his criminal act. At the time of hospitalization of the Armed Forces Hospital, considering the circumstance that: (a) the Defendant took an influent attitude, such as the victim’s right and right, and the reason why the military criminal law strictly punish the crime against the superior officers of the victim, it is inevitable to sentence sentence on the Defendant, in addition to the external reputation of superior officers, to protect the order of the military organization and the direction system.

However, the circumstance that the Defendant did not have any history of criminal punishment before the instant case, and that the instant crime was committed while the victim and the Defendant were in school as a sexual intercourse, and that the victim was pregnant with the Defendant, and that the Defendant was married to marriage after the instant case, without wanting the Defendant’s punishment, may be considered as an element favorable to the sentencing of the Defendant. Even so, it is inevitable to sentence sentence in order to correct the military discipline and to have the Defendant returned to the Republic of Korea as a healthyest and a member of the people’s family.

Considering such circumstances and other circumstances as the Defendant’s age, character and conduct, home environment, motive, means, and consequence of the crime, various sentencing conditions such as the circumstances after the crime are considered unfair.

4. Conclusion

Therefore, the appeal by the defendant is without merit, and the appeal by the military prosecutor is without merit, and the judgment of the court below is reversed pursuant to Article 431 of the Military Court Act, and it is again decided as follows after pleading pursuant to Article 435 of the same Act.

Criminal facts and summary of evidence

The summary of the facts charged and the evidence admitted by this court is as shown in the corresponding column of the judgment below, and thus, they are quoted in accordance with Article 439 of the Military Court Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 48 Subparag. 2 of the Military Criminal Act (a point of violence and intimidation against superior officers), Article 52-2 Subparag. 2 of the Military Criminal Act (a point of injury by official wound) and Article 64(1) of the Military Criminal Act (a point of insult of official wound and choice of imprisonment)

2. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Punishments and Punishments with the largest penalty and Punishments)

3. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)