A defendant shall be punished by imprisonment for six months.

A. misunderstanding of facts and misunderstanding of legal principles have a legitimate reason to leave the military service under the Military Service Act, and there was no intention to leave the military service without permission.

Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. The lower court’s imprisonment with prison labor for four months is too heavy or unreasonable.

2. Determination

A. The summary of the facts charged is a social work personnel who serves B.

Social work personnel shall not desert from their service for at least eight days in total without justifiable grounds.

Nevertheless, from February 22, 2017 to May 22, 2017, the Defendant was absent from office for 24 days without a justifiable reason as stated in the judgment of the court below.

B. The lower court, on the assertion of mistake of facts and misapprehension of the legal doctrine, states that “justifiable cause” as referred to in Article 89-2 subparag. 1 of the Military Service Act means a cause that justifys the nonperformance of the duty to serve in a specified manner, i.e., a reason that is not attributable to the person who left his/her service, such as a disease, etc. (see Supreme Court Decision 2014Do5132, Jun. 26, 2014). The head of a social work personnel service institution provides that a social work personnel may grant sick leave when he/she is unable to perform his/her duties due to a disease or injury other than official duties (Article 59(1)3 of the Enforcement Decree of the Military Service Act), and following the fact that a soldier was unable to perform his/her duties after the Defendant’s advance and after his/her death, such circumstance alone cannot be deemed as having obtained sick permission, and the Defendant could not be deemed to have been deprived of without permission from B on the date of the above criminal facts.