군 형법상 상관모욕죄의 객체로서의 대통령과 표현의 자유 (The president as for the object of superior insult crime of military criminal act and the freedom of expression)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 38권 / 3호 / 69 ~ 94페이지
· 저자명 : 류지영

초록

In the military criminal law act, the superior insult crime is prescribed in the following, Article 64 (Insult, etc. to Superior)(1) A person who insults his/her superior face to face shall be punished by imprisonment with or without prison labor for not more than two years.
(2) A person who insults his/her superior by publishing a document, a picture, or an image, giving a speech, or openly expressing otherwise shall be punished by imprisonment with or without prison labor for not more than three years.
(3) A person who defames his/her superior by stating a fact openly shall be punished by imprisonment with or without prison labor for not more than three years.
(4) A person who defames his/her superior by stating a false fact openly shall be punished by imprisonment with or without prison labor for not more than five years.
The superior insult crime in the military criminal law act, as compared with the criminal law act, is stern discipline.
There are many problems in the interpretation of law. At first, judging from the fundamental right of view, it is possible to infringe the freedom of expression of citizen. In applying this Act, close attention shall be given so as not to infringe unreasonably on the rights of freedom of expression of citizens, and this Act shall not apply arbitrarily for any absolute obedience to superior, the extreme nationalism which deviates from the original purpose.
The second, judging from the substantial law of view, it is possible to infringe the principle of 「nullum crimon sine lege」. In Korean the military criminal law act, the concept of the superior is very indistinct, In Korean criminal law Act, Insult cime is prescribed as following, “A person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won.”. In Korean the military criminal law act, in order to punish the criminals, it is required 「publicly insults」. But in the military criminal law act, it is not required that conditions. And the concept of the superior is full of ambiguities.
The third, judging from the procedural law of view, In order to clarify the criminal fact, it must be verified by the strict evidence. To depend on the statements of the superior may be unfairness and one sided.
In conclusion, in this case the accused might be punished not by the military criminal law act, especially the superior insult crime but disciplinary action.

영어초록

In the military criminal law act, the superior insult crime is prescribed in the following, Article 64 (Insult, etc. to Superior)(1) A person who insults his/her superior face to face shall be punished by imprisonment with or without prison labor for not more than two years.
(2) A person who insults his/her superior by publishing a document, a picture, or an image, giving a speech, or openly expressing otherwise shall be punished by imprisonment with or without prison labor for not more than three years.
(3) A person who defames his/her superior by stating a fact openly shall be punished by imprisonment with or without prison labor for not more than three years.
(4) A person who defames his/her superior by stating a false fact openly shall be punished by imprisonment with or without prison labor for not more than five years.
The superior insult crime in the military criminal law act, as compared with the criminal law act, is stern discipline.
There are many problems in the interpretation of law. At first, judging from the fundamental right of view, it is possible to infringe the freedom of expression of citizen. In applying this Act, close attention shall be given so as not to infringe unreasonably on the rights of freedom of expression of citizens, and this Act shall not apply arbitrarily for any absolute obedience to superior, the extreme nationalism which deviates from the original purpose.
The second, judging from the substantial law of view, it is possible to infringe the principle of 「nullum crimon sine lege」. In Korean the military criminal law act, the concept of the superior is very indistinct, In Korean criminal law Act, Insult cime is prescribed as following, “A person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won.”. In Korean the military criminal law act, in order to punish the criminals, it is required 「publicly insults」. But in the military criminal law act, it is not required that conditions. And the concept of the superior is full of ambiguities.
The third, judging from the procedural law of view, In order to clarify the criminal fact, it must be verified by the strict evidence. To depend on the statements of the superior may be unfairness and one sided.
In conclusion, in this case the accused might be punished not by the military criminal law act, especially the superior insult crime but disciplinary action.

참고자료

· 없음