Insult of a Superior Officer | In Adjudicating the Crime of Insulting a Superior Officer, Considering the Parties' Status, Motive, and Place, Illegality Is Precluded

Defendant A, who was accused of insulting a superior officer, was referred to a military criminal trial on the charge that, while serving at a unit located in Gangwon Province, he held dissatisfaction toward his superior, B, and directed abusive language at him.

Not long after transferring into the unit, A found himself working alone while his superior, B, frequently left his post for reasons such as medical support. As a result, A gradually came to harbor dissatisfaction.

In the barracks, A made remarks insulting his superior, B, to other soldiers, saying, “Sergeant B is always pawning his work off on others, dammit. That bastard shouldn't be getting a paycheck.”

In addition, on the grounds that B's jokes were not funny and that he did not come to work, A criticized him, saying, “Sergeant B is a piece of crap,” thereby publicly insulting his superior.

Accordingly, A was indicted for insulting a superior officer.

A argued in response that his act of insulting his superior lacked the element of publicity and that it amounted to a justifiable act, as it was an expression of legitimate dissatisfaction with his superior.

The court that adjudicated the military criminal trial brought on the charge of insulting a superior officer decided the case based on the legal elements of the crime of insulting a superior officer and the relevant Supreme Court precedents.

First, the court determined that, even though A's remarks expressed dissatisfaction with the negligent work attitude of his superior, B, they satisfied the elements of the crime of insulting a superior officer in that A used contemptuous and insulting expressions.

However, in deciding whether the illegality of that act was precluded, the court referred to the following Supreme Court judgment.

The place where A's remarks were made was the barracks, an informal space where fellow soldiers from his cohort and junior soldiers were present, and his fellow soldiers also stated that they had understood A's remarks as a mere expression of dissatisfaction.

In addition, the court determined that A's motive for being dissatisfied with his superior was also reasonable.

Accordingly, the court held that A's words and conduct could not be seen as having disrupted the organizational order of the military and its legitimate chain of command, and, finding that the act constituted a justifiable act under Article 20 of the Criminal Act so that its illegality was precluded, it rendered a verdict of not guilty as to A.

* Article 20 of the Criminal Act (Justifiable Act): An act that is conducted in accordance with statutes or in the course of duty, or other act that does not violate the rules of social order, shall not be punished.

We analyzed a District Court judgment which held that, in adjudicating a trial on a charge of insulting a superior officer, even where the elements of the crime of insulting a superior officer are satisfied, the act may constitute a justifiable act whose illegality is precluded when one comprehensively considers the defendant's status, the motive for the remarks, the particular nature of the place where the remarks were made, and the effect of the remarks on the order of the military organization.

The crime of insulting a superior officer is punishable by imprisonment with or without labor and carries no fine, and because it is neither a crime not punishable against the victim's will* (a Korean-law offense that cannot be punished if the victim expressly objects to punishment, with no exact common-law equivalent) nor a crime requiring a complaint to prosecute* (an offense prosecutable only upon the victim's complaint, comparable to complaint-based prosecution), the investigation proceeds even if a settlement with the victim is reached or the complaint is withdrawn. Accordingly, if you are subject to a related charge, it is advisable to promptly obtain the assistance of an attorney experienced in military criminal matters.

At the 🔗National Defense and Military Group of Daeryun Law Firm LLP, a task force team of attorneys handling military matters draws on extensive practical experience to protect the legitimate rights and interests of clients.

If you come to face a military criminal trial on a related charge, you are welcome to request a legal consultation.

* Crime not punishable against the victim's will: a crime that cannot be punished once the victim expresses an intention that the offender not be punished

* Crime requiring a complaint to prosecute: a crime for which prosecution cannot be brought without a complaint by the victim