The defendant shall be innocent.

The summary of the judgment of innocence against the accused shall be published.

A. misunderstanding of facts or misunderstanding of legal principles

On August 3, 201, the day preceding the notification of call-up to the public interest service personnel service, the Defendant was hospitalized at ○○○ Council members located in the place of home due to symptoms, such as old soil, snow, etc. according to rapid growth infection. Accordingly, on August 4, 2011, the Defendant sent phone call to a staff member in charge of Incheon Games regional military manpower office (hereinafter referred to as “Military Manpower Administration”), who is the above-mentioned reason, to know the fact that enlistment is difficult due to the above reasons, and notified the above staff member in charge of the enlistment by 12:00 on August 6, 2011.

However, even after August 6, 2011, the above symptoms did not change, and thus, the above symptoms could not be enlisted in the above call, and on August 8, 201, when discharged from the A.I.D. on August 8, 2011, when the above symptoms showed the intention of enlistment of the head of the party to the above-mentioned personnel, immediately after the discharge to the A.I.D.

However, the above officials in charge notified the defendant that enlistment is impossible on the ground that the enlistment date has passed, and that the defendant was accused of violating the Military Service Act, and the defendant was not able to enlist.

However, Article 88(1) of the Military Service Act provides that “If a person who received a notice of enlistment in active service or call-up from the date of enlistment or call-up without justifiable grounds fails to comply with the convocation of a call-up three days after the date of enlistment or call-up, the period of the said three-day period shall not be counted in the first day according to the calculation method prescribed by the Civil Act, but if the last day of the period is a legal holiday, the period of the said three-day period will expire on the following day.

Therefore, in the case of the defendant, the expiration date of the above three-day period will be August 8, 201, and the defendant expressed his intention of enlistment to the person in charge of the Military Manpower Administration on August 8, 2011, but the person in charge of the Military Manpower Administration did not take necessary measures for delayed enlistment but did not refuse enlistment and the defendant was unable to enlist. Thus, the defendant did not have the intention of evading enlistment, and the defendant did not have the intention of evading enlistment and did not have the "justifiable reason" under Article 88 (1) of the Military Service Act.

B. Unreasonable sentencing

The punishment of the court below (six months of imprisonment) is too unreasonable.

2. Determination

A. Summary of the facts charged

The Defendant is a person subject to call-up of public duty personnel service. On July 18, 201, the Defendant was sent a notice to enlistment in the Army Training Center located in Suwon-si, the Military Manpower Administration, and from August 4, 201 to August 3:30, 201, to the Army Training Center located in Busan-si, the Defendant did not enlist for the period of three days from the date of enlistment without justifiable grounds.

B. The judgment of the court below

The court below found the defendant guilty on the grounds of the public official's accusation, etc., on the ground that the defendant did not enlist until the expiration of three days from the call without justifiable grounds.

C. Judgment of the court below

(1) Facts of recognition

According to the evidence duly adopted and examined by the court below and the trial court, the following facts are recognized.

On July 18, 2011, the Defendant directly visited the Military Manpower Administration and received a notice of public duty personnel call to enlist as the Army Training Center located in the field of debate from August 4, 2011 to August 30, 201.

○ However, on August 3, 201, the day before the aforementioned enlistment, the Defendant erred in drinking milk that had passed the distribution period due to simple meals at the site of landscaping construction works, and showed symptoms, such as cartopy and snow death. As a result of the diagnosis, the Defendant received a judgment on “patum infection” and was hospitalized into “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

○ From August 4, 2011, the Defendant, at around 10:00 a.m., sent a phone to the staff of the Military Manpower Administration and received treatment for hospitalization due to the above symptoms, expressed his intention that it is difficult to enlist in the designated call, and then, the above staff member notified the list of those who delayed enlistment to the Army Training Center and set it off in cooperation with the Army Training Center until August 6, 201, when he notified the list of those who delayed enlistment to the Army Training Center.

○ However, even after August 6, 2011, the above symptoms of the defendant did not significantly show, and the defendant, who determined that it is difficult to move long distance, did not enlist until August 6, 201.

○ After that, the Defendant was released from the above hospital on August 8, 201, where the symptoms revealed, and then called the Military Manpower Administration to the 10:49 on the day of the discharge from the above hospital, and the Defendant was unable to enlist in the army for the above reasons. In this context, the Defendant expressed his intention to enlist in the army. However, the above employee in charge was unable to enlist because he did not enlist within the designated date of enlistment again (on August 6, 201, around 12:00), and thus, it was impossible for the Defendant to enlist in the army. Accordingly, the Defendant did not take any other measures, on the other hand, inform the Defendant that he would file a charge of violating the Military Service Act pursuant to Article 88(1) of the Military Service Act. The Defendant failed to enlist in the army.

On the other hand, on September 2, 201, the director of the Incheon Gyeonggi-do regional military manpower office accused the defendant as a violation of the Military Service Act.

(2) Determination

(A) Interpretation of Article 88(1) of the Military Service Act

1) Article 88(1) of the Military Service Act provides that a person who has received a notice of enlistment in active service or call-up shall be punished when he fails to enlist without a justifiable reason even after three days have elapsed from the date of enlistment or call-up. In light of ① A person subject to enlistment in active service or call-up service shall undergo a physical examination within five days from the date of enlistment and take measures for returning home according to the results of the physical examination (Articles 17(1) and (2), 29(3), and 56(1) of the Military Service Act). ② Although the grounds are limited, there are procedures for delayed enlistment which can be conducted within three days from the date of enlistment or the call-up (Articles 24 and 55 of the Enforcement Decree of the Military Service Act), ③ The period of active service or call-up of public duty personnel service is calculated from the date of enlistment or call-up (see Articles 27(1) and 56(1) of the Enforcement Decree of the Military Service Act, regardless of whether he had a legitimate reason for enlistment or call-up of two days from the date of enlistment.

2) Next, as to the method of calculating "three days from the date of enlistment or the call for military service" as stipulated in Article 88(1) of the Military Service Act, there is no separate provision in the Military Service Act, etc. as to the method of calculating the above period. Thus, the first day according to the method of calculating the period prescribed in the Civil Act is not to be included in the calculation, and if the last day of the period falls on a Saturday or a public holiday, it shall be deemed that the next day expires (Articles 155, 157, and 161 of the Civil Act).

(B) Determination as to the defendant's intention to evade enlistment and the existence of "justifiable cause" under Article 88 (1) of the Military Service Act

1) The crime of evading enlistment under Article 88 (1) of the former Military Service Act (amended by Act No. 5757 of Feb. 5, 199) means punishing a person who fails to perform the duty of military service on duty after the abstract existence of the duty of military service is confirmed by the Commissioner of the Military Manpower Administration or the decision of the Chief of Staff of each service branch, and after the delivery of a notice of enlistment in active duty or a notice of call to enlistment within a specified period, which includes the contents of the duty of military service. In this case, the intention in this case refers to an intention that the person does not perform the duty of military service that is included in the notice of enlistment in active duty or call-up (see Supreme Court en banc Decision 98Do3138, Jun. 25, 1999). The "justifiable reason" under Article 88 (1) of the Military Service Act, which is a punishment provision for evading enlistment, is premised on the existence of an abstract duty of military service and the fulfillment of the duty itself, but it is not responsible for a person who fails to perform the duty of military service (see Supreme Court en banc Decision 2694.

2) Therefore, we examine the following circumstances in this case, and ① the defendant directly visited the Military Manpower Administration and received a muster notice. However, the defendant was hospitalized as of August 4, 201, 201, which is the designated officer of the Military Manpower Administration, and the defendant expressed to the officer in charge of the Military Manpower Administration, who was unable to enlist in the military service by telephone call because the enlistment in the designated officer was difficult, and thereafter expressed his intention to delayed enlistment. On August 8, 2011, when the above symptoms were transferred, the above symptoms were immediately discharged at a hospital, the above staff in charge of the military service, who was released from the hospital, expressed his intention to enlist in the army even at the telephone, and the first day is not included in the calculation of the period, and if the last day of the period falls on a legal holiday, it shall be deemed that the period is the end of the designated period of enlistment 3 days after discharge, which is the last day of the period that the defendant did not delay the duty of enlistment within 8 days after the notice of intention to enlist, etc., and thus, the defendant did not delay the duty of enlistment.

3. Conclusion

Therefore, the defendant's argument of mistake of facts or misapprehension of legal principles is with merit, so the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and the judgment is again ruled as follows.

Judges Lee Ho-hoon (Presiding Judge)