Whether a crime of insult of a superior officer is established in the event of insult of his/her superior by telephone (negative)

Article 64 (1) of the Military Criminal Law provides that the elements of a crime of insult of a superior officer are insulting a superior officer in the presence of him, and it is clear that the term "in the face" means the state of the face against him, so it cannot be said that a conversation is made in the presence of him/her.

Article 64(1) of the Military Criminal Act

Defendant

Defendant

Attorneys Kim Chang-joon (Korean National University)

High Military Court Decision 2002No92 delivered on May 7, 2002

The judgment below is reversed and the case is remanded to the High Military Court.

1. Examining the facts of the crimes in paragraphs (1), (3), and (4) of the judgment of the court of first instance in light of the records, the court below is just in finding the defendant guilty of each of the above facts of the crime based on the evidence adopted by the court below, and there is no error of law

2. On April 21, 200, the lower court also found the Defendant guilty of the facts constituting the crime of insulting a person by verbal abuse, that is, the Defendant, at the office of the commander of the YY in the YY of the YY of the YY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEY of the YEM of the YEM of the YEM of the YE of the YE of the YEM of the YE of the YEM of the YE of the YEM of the YE of the YE of the YE of the Y

However, Article 64 (1) of the Military Criminal Law provides that the elements of a crime of insult of a superior officer are insulting a superior officer in the presence of the superior officer, and it is clear that the "in the face" means the state of the face against the face, so it cannot be said that a conversation in the presence of a telephone is made.

Nevertheless, the lower court applied the offense of insult of a superior official to the instant case by telephone. In so doing, the lower court erred by misapprehending the legal doctrine on the offense of insult of a superior official, thereby affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the grounds of appeal on unfair sentencing, the entire judgment of the court below which determined a single punishment by deeming the above crime and other crimes as concurrent crimes, is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Cho Cho-Un (Presiding Justice)