[병역법위반][집26(3)형,115;공1979.3.1.(603),11600]
The case holding that the case does not fall under Article 90 of the Military Service Act "it shall be subject to a disposition of exemption from conscription by deceitful means"
Even if a public official in charge of soldier's service fails to deliver a draft of active duty service for the purpose of evading from conscription and thereby transferred to supplemental service, that alone does not constitute a case of "taking a disposition of exemption from conscription by private means" as prescribed in Article 90 of the Military Service Act.
Articles 90 and 29 of the Military Service Act
Defendant
Attorney Park Jong-soo (Li)
Daejeon District Court Decision 77No1274 delivered on July 5, 1978
The original judgment is reversed, and the case is remanded to Daejeon District Court Panel Division.
The defendant's second ground for appeal is examined.
According to the reasoning of the judgment of the court below, the court below found that the defendant, on January 1, 1971, transferred the warrant to the non-indicted who was discharged from conscription to the non-indicted on the condition that he was exempted from conscription, and received 400,000 won from the non-indicted on December 21, 1973, and did not deliver the warrant for enlistment to the non-indicted who was discharged from the Chungcheongnam Military Manpower Administration on December 21, 1973, and returned the warrant to the Dong Military Manpower Administration with the reason that the non-indicted was unable to deliver the warrant to the non-indicted on the part of his address known, and recognized that the non-indicted transferred the warrant to the supplementary service on January 1, 1977, and maintained the judgment of the first instance court applied Article 90 of the Military Service Act to the above so-called of the defendant, and the defendant's so-called defendant maintained the judgment by a person in charge of the non-indicted Byung's military service,
However, even if the defendant had the non-indicted transferred to supplementary service as mentioned above on the ground that he had the non-indicted as above, even if the non-indicted falls under Article 29 of the Military Service Act and it is impossible to order the non-indicted to return to supplementary service, he cannot be deemed to have been subjected to a disposition of exemption from conscription under Article 90 of the same Act. Thus, the court below erred in the misapprehension of the legal principles as to so-called "the act of the defendant's transfer to supplementary service" under Article 90 of the same Act, which caused the non-indicted to be subject to a disposition of exemption from conscription under Article 90 of the same Act, which led to the non-indicted's wrong application of the law. Therefore, the court below's decision on this ground is without merit.
Therefore, the original judgment is reversed, and the case is remanded to the Daejeon District Court Panel Division which is the original judgment. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Young-young (Presiding Justice)