군형법상 상관모욕죄에 관한 헌법적 고찰

초록

The question concerning the determination of the scope of insult to superior under the Military Criminal Act is a question of the protection of freedom of expression. However, freedom of expression, especially freedom of political speech, is one of the basic constitutional rights that must be highly guaranteed. Therefore, it is necessary to present the interpretation and application criteria of insult to superior more specifically so that the freedom of military political expression is not diminished. And today, it is necessary to deviate from the excessive concentration of the military's specificity, and to realize the constitutional value of guaranteeing the human rights of soldiers in the military justice system including the Military Criminal Act. Therefore, it is necessary to refrain from jurisprudence or interpretation in which the basic constitutional rights of soldiers always yield to the public interest of maintaining the hierarchical order of the military organization and the military command system. In this regard, this article aims to analyze the problems of the Supreme Court and the Constitutional Court's interpretation of insult to superior under the Military Criminal Act and to present constitutional interpretation standards from a more value-balanced and value-harmonic perspective. The results are summarized as follows. First, the interpretation of incorporating the president into a superior in the insult to superior under the Military Criminal Act is an unbalanced interpretation in the conflict between freedom of expression of soldiers and maintenance of the hierarchical order of the military organization and the military command system. The command obedience relationship as the basic premise of discipline under the Military Criminal Act is needed to interpret it limitedly as it refers to the relationship between occupational soldiers. Therefore, the president should be excluded from a superior in the insult to superior under the Military Criminal Act. Second, if it is difficult to completely exclude the president from a superior, then the president as a command-in-chief and the president as a politician should be applied separately. The president who is included in a superior should be limited to the president as a command-in-chief and the president as a politician should be excluded. The insulting expression of a soldier targeting the president as a politician should be regulated as an insult under the Criminal Code, rather than a superior insult under the Military Criminal Act. Third, it is necessary to exclude expressions in a private sector or expressions that are not related to the maintenance of the hierarchical order of the military organization and the military command system from the scope of superior insult. The superior insult under the Military Criminal Act should be interpreted in a limited way to apply only in the case of official comments made on public matters related to the maintenance of the hierarchical order of the military organization and the military command system in a public sector.

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