군형법상 상관모욕죄의 입법적 및 해석적 오류

Sentencings of the Supreme Court and the Constitutional Court regarding Korea’s military justice for insult to superior are problematic. It is desirable for the Supreme Court to change its existing precedents and the Constitutional Court to rule Military Criminal Act article 64 as unconstitutional. Comparative legal review results in contempt cases occurring within the military to all be subject to punishment. However, there are no instances of legislation such as in Korea stipulating aggravated punishment of only imprisonment. The statutory sentence in Korea’s military justice for insult to superior is absurdly excessive. To overcome such problems, especially in terms of interpretation and institutional aspects, article 64 must be repealed. This is because the legal interests that Korea’s military justice seeks to accomplish can already be sufficiently achieved solely through general criminal law. Special treatment such as the application of the Military Criminal Act is unnecessary. Nevertheless, if the National Assembly, through deliberation, decides not to repeal article 64 at least the following improvement measurements should be taken. Firstly, it is necessary to adjust the degree of punishment. Secondly, an article must be enacted that also punishes insult to inferior. Lastly, further specification of the constituent requirements is desperately needed to allow the application of the Military Criminal Act to be interpreted on a narrow scope.