Hello, this is attorney Eom Sang-yoon of Cheongchul Law Firm.

Venting dissatisfaction about a superior while talking privately with peers in the barracks, or impulsively pushing back against a superior's judgment on duty and letting one's emotions show, happens in military organizations without exception. The problem is that the moment all such situations are subsumed under the offense of insulting a superior under Military Criminal Act Article 64(2) (군형법 제64조 제2항), there is a risk that a service member's everyday expression of emotion will be excessively criminalized. Prior Supreme Court precedent had interpreted "public means" ('공연한 방법'), an element of the offense of insulting a superior, in a relaxed manner, to a degree effectively similar to "publicly" ('공연히') in the insult offense under the Criminal Act, and as a result, in practice even private remarks that a small number of colleagues happened to overhear could become subject to aggravated punishment under the Military Criminal Act.

Through its en banc decision 2022Do5937 rendered on July 22, 2026 (대법원 2026. 7. 22. 선고 2022도5937 전원합의체 판결), the Supreme Court departed from that prior interpretation and declared the legal principle that, for the offense of insulting a superior under Military Criminal Act Article 64(2) to be established, it must be a case in which the superior was insulted by conduct that constitutes "publicly displaying a document, drawing, or effigy, or making a speech," or by public means of a degree equivalent thereto. Below, we compare the approach of the prior precedent with the reasoning of this en banc decision, and then summarize the content of the majority opinion and the separate (concurring) opinion, as well as the implications of this decision for military criminal and disciplinary practice.

The Wording of Military Criminal Act Article 64(2) and the Interpretation Under Prior Precedent

Military Criminal Act Article 64 (군형법 제64조) provides for offenses against a superior's reputation in four tiers. Paragraph (1) of that Article punishes a person who insults a superior in the superior's presence by imprisonment with or without labor for not more than two years; paragraph (2) punishes a person who insults a superior "by publicly displaying a document, drawing, or effigy, by making a speech, or by other public means" by imprisonment with or without labor for not more than three years; paragraph (3) punishes a person who damages a superior's reputation by publicly alleging facts by imprisonment with or without labor for not more than three years; and paragraph (4) prescribes imprisonment with or without labor for not more than five years where false facts are publicly alleged.

What stands out here is that, unlike the other paragraphs, paragraph (2) uses not "publicly" ('공연히') but "by public means" ('공연한 방법으로') as its wording. Whereas the insult offense (Criminal Act Article 311 (형법 제311조)) and the defamation offense (Criminal Act Article 307 (형법 제307조)) under the general Criminal Act are both built on the state-based element of "publicly," paragraph (2) alone takes a form of expression requiring that the means or manner itself be public in nature.

Nevertheless, prior Supreme Court precedent had held that the offense of insulting a superior under paragraph (2) is established by insulting a superior in a state in which unspecified or many persons can perceive it, and that the degree of publicity need not necessarily be equivalent to that of publicly displaying a document, drawing, or effigy or making a speech. In other words, despite the difference in the form of the wording, paragraph (2) had in effect been applied under the same standard as the "publicly" element of the insult offense under the Criminal Act.

Under such an interpretation, most cases would satisfy the elements of the offense of insulting a superior, for example where a person speaks ill of a superior in a barracks room with a few colleagues present, or where a subordinate who was nearby on a naval vessel or at a guard post happens to overhear a remark of dissatisfaction about a superior. Indeed, the defendant in this case, in the pilothouse of a naval vessel, offered opinions several times regarding the vessel's entry into port to the superior who was the vessel's commanding officer (정장), and when these were not accepted, said "The commander here is a mess. Won't even listen to recommendations" within the hearing of three persons, including a noncommissioned officer (하사), who were each performing their own duties nearby, and threw a headset onto the desk; for this conduct the defendant was indicted for the offense of insulting a superior under Military Criminal Act Article 64(2), and the lower court found the defendant guilty of it.

The Reasoning of the Majority Opinion and the Separate Opinion

The majority opinion of the Supreme Court changed the prior precedent and limited "public means" under paragraph (2) to conduct that constitutes "publicly displaying a document, drawing, or effigy, or making a speech," or public means of a degree equivalent thereto.

1. "Public means" ('공연한 방법'), in its dictionary sense, refers to a means or manner adopted for the purpose of making something known so clearly and openly that the whole world would know of it, and this is conceptually distinct from "publicly" ('공연히'), which refers to a state in which an unspecified multitude can perceive the matter. The point made is that the prior precedent's application of paragraph (2) without distinguishing the two concepts amounts to an expansive interpretation to the defendant's disadvantage and thus runs counter to the principle of legality (nulla poena sine lege, 죄형법정주의).

2. In terms of legislative form, paragraph (2) is drafted so as to specifically enumerate the public display of a document, drawing, or effigy and the making of a speech as methods of insulting a superior, and then to place a general clause, "other public means." Because the enumerated methods in themselves carry a high degree of propagation, diffusion, and persistence, the general clause "other public means" must also be a type of conduct that receives the same legal evaluation as the enumerated examples or that is similar enough to be sufficiently foreseeable.

3. The reason the offense of insulting a superior is separately prescribed in addition to the insult offense under the Criminal Act and is punished more heavily is to protect a special interest that goes beyond infringement of the superior's personal reputation, namely the maintenance of the sound hierarchical order and chain of command of the military organization. Because the chain of command is substantively endangered only where a superior is insulted by public means carrying a high degree of propagation, it is natural that the scope regulated by paragraph (2) be limited to that type of conduct.

4. The statutory penalty under paragraph (2) (not more than three years) is the same as that for damaging a superior's reputation by publicly alleging facts (paragraph (3), not more than three years). This presupposes that the act of insulting a superior by public means of a degree equivalent to publicly displaying a document, drawing, or effigy or making a speech carries a gravity of infringement of legal interests comparable to defamation of a superior by alleging facts.

5. Even where a superior is simply insulted publicly, rather than by public means, punishment is possible as the insult offense under Criminal Act Article 311 (형법 제311조), and military disciplinary action may also be taken separately, so no gap in punishment arises from the narrowing interpretation. Moreover, while insulting a superior in the superior's presence is punished by not more than two years (paragraph (1)), heavily punishing under paragraph (2), with not more than three years, disparaging remarks made in everyday conversation to a few people where the superior is absent would instead produce an unbalanced result.

Meanwhile, the separate (concurring) opinion of five Justices sympathized with the majority opinion's underlying concern itself, namely that it is unjust to subsume even insults made in private conversation under the offense of insulting a superior, but took the view that the solution should be found not in changing the prior precedent's textual interpretation but in limiting the scope of punishment from the standpoint of the protected legal interest. That is, its approach is to interpret that even conduct that could be viewed as a public insult does not constitute the offense of insulting a superior under paragraph (2) where it is difficult to find that the sound hierarchical order and chain of command of the military organization were directly and concretely infringed thereby. In its conclusion it aims at an interpretation in a similar direction, but in its grounds, as between textual interpretation and the protected legal interest, it placed weight on the protected legal interest.

Implications for Military Criminal and Disciplinary Practice

With respect to the conduct of the defendant in this case, the majority opinion considered together that (i) the defendant, after offering opinions to the superior several times regarding the vessel's entry into port without their being accepted, expressed dissatisfaction or anger toward the superior by blurting it out impulsively and on a single occasion or by throwing a headset; (ii) the three persons, including the noncommissioned officer, merely happened to hear the remark or witness the conduct while each performing their own duties beside the defendant; (iii) the defendant did not step forward before the three persons and convey the defendant's own assertions unilaterally and openly; and (iv) the conduct was not carried out in a manner likely to spread repeatedly and continuously to many service members in physical space or virtual space. In conclusion, the Court held that the defendant's conduct could not be regarded as insulting a superior by public means of a degree equivalent to publicly displaying a document, drawing, or effigy or making a speech, and therefore did not constitute the offense of insulting a superior under Military Criminal Act Article 64(2), and reversed (파기) the lower court's judgment.

Previously, disparaging remarks about a superior or one-off expressions of dissatisfaction made where a small number of colleagues were present were mostly subsumed under the scope of paragraph (2); going forward, however, it appears that factors such as (i) the propagation and diffusion potential of the remark, (ii) the nature of the space in which the remark was made (whether it was a space for public communication of views, or a space where the remark was incidentally exposed while each person was on duty), (iii) the repetitiveness and persistence of the remark, and (iv) whether there was an intent to convey it unilaterally and openly to the listeners will be considered comprehensively.

That said, it should also be noted that this decision is not intended to exempt all acts of insulting a superior from liability. As the majority opinion itself stated, (i) an insult in the superior's presence is still punished under paragraph (1) (not more than two years), (ii) an insult made publicly is punished as the insult offense under Criminal Act Article 311 (형법 제311조), and (iii) military disciplinary action may be taken separately. Defamation of a superior by alleging facts (paragraph (3)) and defamation by alleging false facts (paragraph (4)) continue to be strictly regulated under separate elements and statutory penalties. In other words, this decision interpreted the regulatory scope of Military Criminal Act Article 64(2) in accordance with its wording; it did not grant an indulgence for acts of insulting a superior.

It should also be noted that this decision leaves open room for the offense of insulting a superior still to be established with respect to acts of insulting a superior carried out in virtual space, such as social media, open chat rooms, and unit bulletin boards. The "public means of a degree equivalent to publicly displaying a document, drawing, or effigy or making a speech," which the majority opinion adopted as the standard for its narrowing interpretation, means a means carrying a high degree of propagation, diffusion, and persistence, so posts in online spaces or messages sent to many recipients are in themselves likely to meet this requirement. The phrase the majority opinion gave as an example, "a manner likely to spread repeatedly and continuously to many service members in physical space or virtual space," can be understood as a holding that took this aspect into account.