[1] In the crime of assault, intimidation, injury, and insult against superior officers under the Military Criminal Act, whether a higher-ranking person and a higher-ranking person are included in the crime of assault, intimidation, injury, and insult (affirmative), and whether a superior necessarily requires that he/she be in the course of performing his/her duties (negative)

[2] Whether a crime of insult of a superior under Article 64(1) of the Military Criminal Act is established even if a person does not have a public performance in the face of his/her superior in the face of his/her superior (affirmative)

[1] In light of the fact that the crime of assault, intimidation, and injury to a superior stipulated in Articles 48 and 52-2 of the Military Criminal Act and the crime of insult of superior stipulated in Article 64(1) are not only personal legal interests such as the body and honor of his superior, but also legal interests such as the maintenance of a deceptive scheme and a system of communication with the military organization, the superior in these crimes include a higher rank or higher rank in the event that there is no command-rein-related relationship, and the superior does not necessarily require that he be in the course of performing his duties.

[2] Article 64(1) of the Military Criminal Act provides that “A person who insults a superior in the face of him/her shall be punished,” and does not require a person to insult him/her by means of public performance different from Article 64(2). In cases where a person insults his/her superior in the face of his/her superior, a crime of insult of superior under Article 64(1) of the Military Criminal Act is established even if he

[1] Article 2 subparag. 1, Articles 48, 52-2, and 64(1) of the Military Criminal Act / [2] Article 64(1) and (2) of the Military Criminal Act

[1] Supreme Court Decision 75Do3608 delivered on February 10, 1976 (Gong1976, 9016) / [2] Supreme Court Decision 67Do1019 delivered on September 26, 1967

Defendant

Defendant

Attorney Lee Dong-hee

High Court Decision 2015No200 decided July 14, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 2 subparag. 1 of the Military Criminal Act refers to a person with the authority to issue an order in the relation of a command, and Article 2 subparag. 1 of the Military Criminal Act provides that a higher-ranking person and a person with a higher-ranking rank in the absence of the authority to issue an order is equivalent to his/her superior. In light of the fact that both the crime of assault, intimidation, and bodily injury to his/her superior as defined in Articles 48 and 52-2 of the Military Criminal Act and the crime of insult of his/her superior as defined in Article 64(1) are protected by the legal interest of protecting not only the personal legal interests of his/her superior such as his/her superior’s body and honor, but also the protection of the law of deceptive scheme and the system of communication by the military organization, it is reasonable to deem that the superior in these crimes

In addition, Article 64(1) of the Military Criminal Act provides that a person who insults a superior in the presence of the superior is punished, and is not required to insult him by means of public performance unlike Article 64(2). Thus, in a case where the superior is insulting in the presence of the superior, the crime of insult of superior under Article 64(1) of the Military Criminal Act is established even if he does not have a public performance.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, it is just for the court below to find the Defendant guilty of all the facts charged. Contrary to the allegations in the grounds of appeal, the court below erred by misapprehending the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles as to the intentional act or insult of superior and the violation of the principle of no punishment without law, as alleged in the grounds of appeal.

2. Furthermore, the argument that the lower court erred in violation of the principle of balanced criminal punishment or the principle of accountability falls under the allegation of unfair sentencing. However, under Article 442 Subparag. 7 of the Military Court Act, an appeal on the grounds of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is imposed. As such, in this case where the Defendant was sentenced to a more minor punishment, the argument that the amount of

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)