Public Means in the Crime of Insulting a Superior, Seizure in Military Secrets Cases and Strict Construction of the Military Service Obligation: Three Judgments on Military Criminal Law and Military Justice

Question

This brief examines three Supreme Court judgments: one on the interpretation of "public means" in the crime of insulting a superior under the Military Criminal Act, which overruled earlier precedent; one on the framework for reviewing "justifiable grounds" under Article 88(1) of the Military Service Act; and one on the scope of relevance in the search and seizure of a mobile phone in a case of leaking military secrets.

The first issue is the question addressed in Judgment 2022Do5937: "Does a remark insulting a superior, heard by three persons in the wheelhouse of a naval vessel, constitute public means?" The second issue is the question addressed in Judgment 2016Do10912: "Does refusal of military service based on genuine conscience constitute justifiable grounds under Article 88(1) of the Military Service Act?"

The third issue is the question addressed in Judgment 2020Do10908: "Does printing out electronic information from a copy taken out to an investigative agency's office, without distinguishing its relevance to the alleged facts, constitute an unlawful seizure, and is the admissibility of derivative evidence (fruit of the poisonous tree) based on it denied?" All three judgments ask how the boundaries of the statutory text and the substantive factors for judgment are to be determined on the record.

Material to check

First (2022Do5937): this judgment addresses whether the crime of insulting a superior under Article 64(2) of the Military Criminal Act is established by mere possibility of perception, or whether it requires public means equivalent to public display or a speech. To verify on the record the requirements set out in the summary of the judgment, one must examine materials showing how the opinion on the vessel's entry into port came to be expressed and the circumstances in which three persons, including Petty Officer Third Class B, heard the remark or witnessed the conduct in the wheelhouse while performing their duties. In particular, one must examine materials showing whether the defendant stepped forward before B and the others to convey a doctrine, assertion or opinion, and how the remark "The commander here is a mess. He won't even listen to advice." and the act of taking off a headset and throwing it onto a desk came about.

Second (2016Do10912): this judgment addresses the legal nature of justifiable grounds under Article 88(1) of the Military Service Act, whether conscientious objection falls within them, their relationship with an alternative service system, and the meaning of genuine conscience and how it is proved. To verify on the record the requirements set out in the summary of the judgment, one must examine materials showing the date on which the notice of enlistment for active duty issued in the name of the head of the regional military manpower office was received and the circumstances in which the defendant failed to enlist within three days of the enlistment date. In addition, to determine whether the conscience claimed by the defendant is deep, firm and sincere, one must examine materials showing "whether the religion recognises the defendant as a full member" and "the defendant's period of faith and actual religious activities".

Third (2020Do10908): this judgment addresses the exceptions under which a storage medium or the like may be taken out of the premises in the search and seizure of electronic information, whether printing out information without distinguishing relevance is unlawful, and how the admissibility of illegally obtained evidence and of derivative evidence is to be determined. On the record, whether the exception for removal applies and the procedure for distinguishing relevance are examined through materials showing the search, seizure and inspection warrant, the circumstances of the seizure of the mobile phone and the creation of the copy, and the process of analysing the Excel file of extracted information. Next, one examines materials showing how relevance was distinguished when documents were printed or files copied from the copy, and the circumstances bearing on "whether the causal link was attenuated or severed".

Possible readings

In the 2022Do5937 case, the issue was whether the crime of insulting a superior under Article 64(2) of the Military Criminal Act is established merely by insulting a superior in a state in which an unspecified or large number of persons could perceive it, or whether it requires publicly displaying documents, drawings or images, making a speech, or other public means equivalent thereto.

In the 2016Do10912 case, the issues were the legal nature of, and the factors for assessing, "justifiable grounds" under Article 88(1) of the Military Service Act; whether conscientious objection constitutes justifiable grounds; the meaning of "genuine conscience" and how it is proved; and the burden of proving the absence of justifiable grounds.

In the 2020Do10908 case, the issues were the exceptions under which a storage medium or a copy may be taken out of the premises in the search and seizure of electronic information; the unlawfulness of printing out or copying electronic information from the removed medium without distinguishing its relevance to the alleged facts; and the admissibility of evidence collected without following the procedure prescribed in the Military Court Act and of derivative evidence.

What the decisions held

Supreme Court en banc Judgment 2022Do5937 rendered on 22 July 2026 held as follows: "Considering comprehensively the wording, structure and legislative form of Article 64(2) of the Military Criminal Act, its legislative purpose and the legal interests it protects, its harmony with the legal order as a whole, and the balance of punishment, the crime of insulting a superior under Article 64(2) of the Military Criminal Act cannot be regarded as established merely by insulting a superior in a state in which an unspecified or large number of persons could perceive it; rather, it should be regarded as established only where a superior is insulted by 'publicly displaying documents, drawings or images, or making a speech', or by public means of an equivalent degree." By this judgment, the Supreme Court made clear that "public means" in Article 64(2) of the Military Criminal Act is a constituent element distinct from "publicly", and that an extension unfavourable to the defendant is not permitted. The Court held that a degree of transmissibility, dissemination and permanence equivalent to the listed examples of public display of documents, drawings or images and of speeches is required. The provision is intended to punish severely only insults reaching that degree, in order to maintain the chain of command and the command structure, which are the protected legal interests. The Court stated that there is no gap, since such conduct can be regulated by Article 311 of the Criminal Act and by disciplinary measures, and that the imbalance of punishing such conduct more heavily than an insult made to a superior's face is also resolved. It held that the defendant's remark was impulsive and one-off, was heard and witnessed by three persons by chance, and was not a method of public communication or dissemination, so that it did not constitute the crime of insulting a superior.

Supreme Court en banc Judgment 2016Do10912 rendered on 1 November 2018 held as follows: "Accordingly, if a refusal of military service is based on genuine conscience, it constitutes 'justifiable grounds' under Article 88(1) of the Military Service Act." By this judgment, the Supreme Court treats justifiable grounds as an indeterminate concept that negates the fulfilment of the constituent elements of the offence, and considers together the purpose of the Military Service Act, its constitutional position and changing times. It regards conscientious objection as the realisation of conscience through passive omission, and holds that, where a refusal is based on genuine conscience, criminal punishment excessively restricts freedom of conscience. It states that the existence or absence of an alternative service system and the recognition of justifiable grounds are not in a relationship of logical necessity, so that, even without an alternative service system, a person cannot be punished if justifiable grounds exist. It explains that genuine conscience means a conviction that is deep, firm and sincere, and that the absence of justifiable grounds must be proved by the prosecutor, although the defendant must present supporting materials sufficient to be accepted.

Supreme Court Judgment 2020Do10908 rendered on 14 August 2025 held as follows: "Accordingly, printing out as documents or copying as files electronic information arbitrarily stored on a storage medium or copy taken out to an investigative agency's office or the like, without distinguishing its relevance to the alleged facts, in principle constitutes an unlawful seizure contrary to the warrant principle." By this judgment, the Supreme Court held that printing out or copying from a removed copy without distinguishing relevance in principle constitutes an unlawful seizure contrary to the warrant principle. It explained that derivative evidence obtained on the basis of illegally collected evidence is likewise in principle inadmissible, but that in exceptional cases it may be used as evidence for a finding of guilt, and that this determination is made on an overall and comprehensive basis, centring on whether the causal link has been attenuated or severed.

Practical checklist

First, does a remark insulting a superior, heard by three persons in the wheelhouse of a naval vessel, constitute public means? On the record, check whether it constitutes public means by examining whether the remark "The commander here is a mess. He won't even listen to advice." was a unilateral communication of a doctrine, assertion or opinion made by stepping forward before B and the others, and whether the act of taking off a headset and throwing it onto a desk was carried out in a manner likely to be disseminated.

Second, does refusal of military service based on genuine conscience constitute justifiable grounds under Article 88(1) of the Military Service Act? On the record, check whether justifiable grounds exist by examining the circumstances in which the defendant failed to enlist "within three days of the enlistment date despite receiving the notice of enlistment for active duty issued in the name of the head of the regional military manpower office", together with the specific doctrines of the religion, the period of faith and actual religious activities, to confirm whether the conscience is deep, firm and sincere.

Third, does printing out electronic information from a copy taken out to an investigative agency's office, without distinguishing its relevance to the alleged facts, constitute an unlawful seizure, and is the admissibility of derivative evidence based on it denied? On the record, compare the circumstances in which documents were printed or files copied from the removed storage medium or copy without distinguishing relevance with the circumstances bearing on "whether the causal link was attenuated or severed", and check whether there was an unlawful seizure and whether the admissibility of the derivative evidence is denied.

Glossary

The public-means requirement for the crime of insulting a superior under the Military Criminal Act and the standard for overruling precedent (2022Do5937): The Supreme Court made clear that "public means" in Article 64(2) of the Military Criminal Act is a constituent element distinct from "publicly", and that an extension unfavourable to the defendant is not permitted. The Court held that a degree of transmissibility, dissemination and permanence equivalent to the listed examples of public display of documents, drawings or images and of speeches is required. The provision is intended to punish severely only insults reaching that degree, in order to maintain the chain of command and the command structure, which are the protected legal interests. The Court stated that there is no gap, since such conduct can be regulated by Article 311 of the Criminal Act and by disciplinary measures, and that the imbalance of punishing such conduct more heavily than an insult made to a superior's face is also resolved. It held that the defendant's remark was impulsive and one-off, was heard and witnessed by three persons by chance, and was not a method of public communication or dissemination, so that it did not constitute the crime of insulting a superior. The factors identified include a high degree of transmissibility, dissemination and permanence.

The framework for interpreting justifiable grounds under Article 88(1) of the Military Service Act (2016Do10912): The Supreme Court treats justifiable grounds as an indeterminate concept that negates the fulfilment of the constituent elements of the offence, and considers together the purpose of the Military Service Act, its constitutional position and changing times. It regards conscientious objection as the realisation of conscience through passive omission, and holds that, where a refusal is based on genuine conscience, criminal punishment excessively restricts freedom of conscience. It states that the existence or absence of an alternative service system and the recognition of justifiable grounds are not in a relationship of logical necessity, so that, even without an alternative service system, a person cannot be punished if justifiable grounds exist. It explains that genuine conscience means a conviction that is deep, firm and sincere, and that the absence of justifiable grounds must be proved by the prosecutor, although the defendant must present supporting materials sufficient to be accepted. The factors identified include the specific doctrines of the religion, the period of faith and actual religious activities, and the family environment and upbringing.

Bulk printing of mobile phone electronic information and the admissibility of evidence of a separate offence (2020Do10908): The Supreme Court held that printing out or copying from a removed copy without distinguishing relevance in principle constitutes an unlawful seizure contrary to the warrant principle. It explained that derivative evidence obtained on the basis of illegally collected evidence is likewise in principle inadmissible, but that in exceptional cases it may be used, and that this determination is made on an overall and comprehensive basis, centring on whether the causal link has been attenuated or severed. The factors identified include the nature and degree of the procedural violation, the awareness and intent of the investigative agency, and whether the causal link has been attenuated or severed.

Sources and limitations

This brief was prepared solely on the basis of the original texts of Article 64(1) and (2) of the Military Criminal Act, Article 88(1) of the Military Service Act, Articles 12(1), 13(1), 19 and 39 of the Constitution of the Republic of Korea, and Articles 215, 307 and 308-2 of the Criminal Procedure Act, as published on the Korea Law Information Center, and the texts of Supreme Court Judgment 2022Do5937 rendered on 22 July 2026, Supreme Court Judgment 2016Do10912 rendered on 1 November 2018, and Supreme Court Judgment 2020Do10908 rendered on 14 August 2025.

This is academic research material setting out general legal principles and standards for reviewing records; it is not legal advice on any individual case or an opinion for submission to a court.

Points left open

2022Do5937: Where should the line be drawn between a private conversation and public communication?

2016Do10912: Where refusals of military service recur despite continued criminal punishment and the court resolves the conflict through its interpretation of justifiable grounds, to what extent can the standard for identifying genuine conscience be made objective?

2020Do10908: If the investigative agency had limited the scope of extraction to a period close to the date of the offence, could bulk printing be permitted?

When to reconsider

2022Do5937: The assessment will be revisited if materials are identified showing that the expression was made through repeated or continuous communication or by a method capable of dissemination.

2016Do10912: The assessment will be revisited if the court below examines the history of the defendant's faith, his way of life, his family members' history of imprisonment and the like, and determines whether his conscience is genuine.

2020Do10908: If Article 359-2 of the Military Court Act is amended, this reading should be revisited.

Statutes referred to

• 군형법 제64조 제1항·제2항
• 병역법 제88조 제1항
• 대한민국헌법 제12조 제1항, 제13조 제1항, 제19조, 제39조
• 형사소송법 제215조, 제307조, 제308조의2

Decisions referred to

• 대법원 2026. 7. 22. 선고 2022도5937 전원합의체 판결 · Decision ledger
• 대법원 2018. 11. 1. 선고 2016도10912 전원합의체 판결 · Decision ledger
• 대법원 2025. 8. 14. 선고 2020도10908 판결 · Decision ledger

Verification status

The provisions cited (Article 64(1) and (2) of the Military Criminal Act; Article 88(1) of the Military Service Act; Articles 12(1), 13(1), 19 and 39 of the Constitution of the Republic of Korea; and Articles 215, 307 and 308-2 of the Criminal Procedure Act) and the judgments discussed (Supreme Court Judgment 2022Do5937 rendered on 22 July 2026, Supreme Court Judgment 2016Do10912 rendered on 1 November 2018, and Supreme Court Judgment 2020Do10908 rendered on 14 August 2025) were checked against the current legislation on the Korea Law Information Center and the original texts of the Supreme Court judgments as of 15 October 2026. This brief cites only the three judgments listed among the judgments discussed.