The Supreme Court ruled that a petty officer in the Navy did not commit the offense of insulting a superior under the Military Criminal Act when, aboard a naval vessel, the petty officer threw off a headset and said, "The commander is a mess," after a superior, a captain, refused to accept the petty officer's opinion. As a result, a Supreme Court precedent established in 1999 was changed after 27 years.
The Supreme Court en banc (presiding Justice Lee Heung-gu) on the 22nd overturned the lower court ruling that had sentenced Navy Petty Officer First Class A to six months in prison, suspended for one year, for the offense of insulting a superior under the Military Criminal Act, and sent it back with a ruling of not guilty.
The Supreme Court transferred the case to the Seoul High Court, a court of equal jurisdiction to the original court (High Court-martial). This is because the High Court-martial was abolished when the amended Court-martial Act took effect in July 2022.
Navy Petty Officer First Class A served as the combat information center chief aboard the vessel. The combat information center chief is the senior noncommissioned officer in charge of the department overseeing radio detection (radar) and combat system equipment.
The vessel A was aboard was entering its base on Oct. 18, 2019. In the ship's wheelhouse, A presented several opinions (engine recommendations) regarding the entry to Captain B, A's superior, but the superior did not accept them.
Angered, A said, with three people including a staff sergeant listening, "The commander here is a mess. Doesn't even listen to recommendations," and took off the headset A was wearing and threw it onto the desk.
A was indicted for the offense of insulting a superior under the Military Criminal Act. Article 64(2) of the Military Criminal Act provides, "A person who insults a superior by publicly posting a document, drawing, or effigy, or by a speech or any other open method shall be punished by imprisonment or imprisonment without labor for not more than three years."
The trial court sentenced A to six months in prison, suspended for one year, and the appellate court dismissed the appeals by A and the military prosecutor. A appealed to the Supreme Court.
The issue was whether A's conduct constituted insulting a superior by "any other open method." In 1999, the Supreme Court said that "if a superior is insulted in circumstances perceivable by unspecified or numerous persons," it falls under "any other open method."
Regarding this case, the Supreme Court said, "The three service members present at the scene only happened to hear A's remarks or witness the conduct while performing their duties," and "A's insult toward the superior was not carried out unilaterally and openly before the three service members."
Accordingly, it determined that A's words and actions cannot be viewed as an "other open method," and therefore do not constitute the offense of insulting a superior.
The Supreme Court found that the offense of insulting a superior under the Military Criminal Act differs from the offense of insult under the Criminal Act. The Criminal Act provides, "A person who openly insults another shall be punished by imprisonment or imprisonment without labor for not more than one year or by a fine not exceeding 2 million won."
The Supreme Court said that "openly" in the offense of insult under the Criminal Act means a state in which unspecified or numerous persons can perceive it. In contrast, it determined that "open method" in the offense of insulting a superior under the Military Criminal Act means that the means or manner of the insult itself must possess openness.
The Supreme Court en banc majority opinion said of the previous precedent, "It interpreted the meaning of 'open method' in a way unfavorable to the defendant, which runs counter to the principle prohibiting expansive interpretation, a component of the principle of legality."
A Supreme Court official said, "It is a ruling aimed at reasonably limiting the scope of punishment by strictly interpreting the text."