[2] The case holding that even if a fine payer's failure to pay the duty of military service was caused by voluntary withdrawal to a punishment executive agency for the purpose of evading military service, it cannot be viewed as an act subject to punishment under Article 86 of the Military Service Act

[2] The case holding that even if a fine payer's failure to pay a fine has caused a result of failure to perform his duty of military service due to voluntary withdrawal to a punishment enforcement agency for the purpose of evading military service, it cannot be deemed as an act subject to punishment under Article 86 of the Military Service Act

Article 86 of the Military Service Act provides that "Any person who deserts, absconds, or injures his body or commits a deceitful act with the intention of evading or evading the duty of military service or having military service reduced or exempted shall be punished by imprisonment with prison labor for not less than one year but not more than five years." Considering that an act of not performing the duty of military service passively is punished separately for a crime of evading the duty of military service under Article 88 of the Military Service Act, an act subject to punishment under Article 86 of the Military Service Act refers only to an active act that is directly dangerous to evade the performance of the duty of military service and to infringe the appropriateness of the military service in order to achieve the purpose of evading or exempting the duty of military service beyond the degree of the act of evading the duty of military service (see Supreme Court Decisions 2003Do8247, Mar. 25, 2004; 2005Do1995, Nov. 10, 2005, etc.).

Therefore, even if a person who did not pay a fine even after having received the final and conclusive judgment of a fine, was found to have the purpose of evading military service, if it was merely a person who was detained in a workhouse by voluntary withdrawal to the punishment execution agency, it cannot be deemed as an act subject to punishment of the above provision even if the result of non-performance of military service was caused.

Therefore, the court below erred in the misunderstanding of legal principles as to Article 86 of the Military Service Act, and clearly affected the conclusion of the judgment, since the court below found Busan District Prosecutor's Office, who did not know that the defendant had been sentenced to a fine for the purpose of evading the duty of military service, and expressed his intention to have the defendant be subjected to a disposition of detention in prison, and eventually, as long as the defendant's personal was entrusted to a place beyond the administrative capacity of the enlistment agency and the defendant did not perform the duty of military service, it caused the defendant's act of evading or exempting the performance of the duty of military service. Thus, the court below erred in the misapprehension of legal principles as to the escape under Article 86 of the Military Service Act, and it remains clear that such illegality has affected the judgment (which is located within the area of the administrative power of the Government of the Republic of Korea and all of the Ministry of National Defense and the Ministry of Justice's execution of the duty of military service within the area where the government of the Republic of Korea has an administrative power to realize the military service through consultation and coordination, the order of mutual execution.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)