Defendant 1 shall be punished by imprisonment for one year.

One hundred days of detention days prior to the pronouncement of the judgment below shall be included in the original sentence.

The Prosecutor’s appeal against Defendant 2 and the Defendants’ appeal are dismissed.

In light of the records, first of all, the examination of the evidence duly admitted by the court below after examining the evidence in light of the records, there is no error of law as pointed out in the arguments in the process of fact-finding of the court below, even if examining the case records, it is clear that the court below's determination of punishment against the defendant is inappropriate, too heavy, or unreasonable, even if considering the circumstances asserted by the defendant or public prosecutor, since each of the grounds for appeal as to this point is not acceptable.

2. The gist of the grounds for appeal as to the part of acquittal against Defendant 1 by the prosecutor is that the court below acquitted the defendant on the grounds that the violation of the Military Service Act against the defendant was not committed, which affected the conclusion of the judgment by misunderstanding the legal principles of the Military Service Act, which affected the conclusion of the judgment. Thus, the part of innocence is not reversed. Thus, according to Article 140 subparagraph 8 of the Enforcement Rule of the Military Service Act, the commander of the convening division or the director of the regional military manpower office delegated by him shall cancel the call-up when the person who was called for defense becomes unable to serve in the call-up for defense due to the detention of the crime, etc., but the same provision alone does not mean that the call-up should be cancelled as a matter of course without cancellation if the person called for defense becomes unable to serve in the call-up for defense due to the detention of the crime. Accordingly, even if the person called for defense was detained as a result of the crime, as long as the person did not take measures to cancel the call-up during that period, it cannot be obligated to return the call-up.

In this case, in full view of the prosecutor's statement of non-indicted 1 and the statement of confirmation of facts (219) notified to the director of the Daejeon District Prosecutors' Office on June 9, 1972, it is clear that there is no fact that the defendant has cancelled the call-up for defense against the defendant to the commander of the call-up division or the director of the regional military manpower office delegated by him when the defendant is detained in violation of the Military Service Act before the case was established. Accordingly, the defendant was obligated to return to the call-up unit and continue to serve for the call-up from December 15, 1972, the next day after the release of the above case, and because the defendant violated such obligation, the so-called defendant's breach of such obligation constitutes a new crime of escape from service, separate from the part punished by the former, and the part against the defendant 1 among the judgment of the court below otherwise cannot be reversed because it is undue.

Therefore, pursuant to Article 364 (6) of the Criminal Procedure Act, the part against Defendant 1 among the judgment below shall be reversed, and a party member shall be decided again.

(Criminal Facts)

On December 14, 1971, Defendant 1 was sentenced to a suspended sentence of two years for a violation of the Military Service Act by the Daejeon District Court.

(1) On November 20, 1969, the Defendant, who was called up for the first recruit service and served as night guards for eight hours each day from the date of shooting at the homeland reserve forces arms arms arms located at the Sungnam Police Station located in the Daejeon Police Station from November 20, 1969 to the date of April 6, 1972, left the military service without justifiable reasons for fifty seven days each year from December 16, 1971 to April 6, 1972.

(2) Around 20:00 on January 13, 1972, in collaboration with Defendant 2 and Nonindicted 2, etc., the Defendant and Nonindicted 2 knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife k.

(Evidence)

The facts of the judgment, as the case may be, shall be

1. The statement (1) of the facts in the judgment of the defendant in the original trial court and the statement consistent with the facts in (2) of the judgment of the defendant and the above defendant 2, etc.;

1. Statement that is consistent with the facts set forth in (2) of the judgment of the court below rendered by Nonindicted 3 as the witness

1. Statement consistent with the facts indicated in (ii) of the prosecutor's protocol of interrogation of the suspect as to the defendant and non-indicted 4

1. Part of the statement made by the prosecutor with respect to Nonindicted 1, 3, and 5, etc., which correspond to the pertinent part of each judgment

1. The part of each statement that complies with the facts of the judgment in the protocol of statement concerning Nonindicted 3, 6, 7, and 8 of the preparation of the handling of affairs by the judicial police officer

1. Statement consistent with the facts described in (a) above among the notifications of confirmation of the preparation of the director of the regional military manpower office; and

1. Entry of the criminal records and notifications concerning the accused in the preparation of the Director General of the Public Security Bureau, which correspond to the previous records and facts;

As a whole, there is sufficient evidence to recognize it.

(Application of Acts and subordinate statutes)

The second sentence of the Military Service Act, the second sentence of Article 85, the second sentence of the same Act, the second sentence of Article 85, the second sentence of the same Act, and Article 257 (1) of the Criminal Act, and the second sentence of the same Act, are concurrent crimes under the former part of Article 37 of the same Act. Since the second sentence of the same Act, the second sentence of the same Act is concurrent crimes under the former part of Article 37 of the same Act, the second sentence of the same Act is selected among the prescribed types of imprisonment under the violation of the Military Service Act, the second sentence of the same Act is heavy crimes under Article 38 (1) 2 and Article 50 of the Criminal Act, and the second sentence of the same Act reduces its circumstances, the second sentence shall be punished by imprisonment with prison labor for not more than one year within the scope of the term of punishment to be mitigated under Article 53 and Article 55 (1) 3 of the same Act, and 100 days out of the number of detention days before

3. The gist of the grounds for appeal by Defendant 2 is that the determination of the sentence imposed by the court below against the defendant is too unreasonable, and the gist of the grounds for appeal by the prosecutor against the defendant is that the determination of the sentence imposed by the court below against the defendant is too uneasible and unfair.

Examining the following circumstances in detail: (a) considering the motive, means, consequence, degree of damage, age, character and conduct, environment, criminal record, and circumstances after the crime, etc., the court below's lawfully examined sentencing conditions, even in light of the circumstances asserted by the defendant or prosecutor, it is not thought that the amount of the sentence imposed by the court below is inappropriate, too heavy or unreasonable; and (b) therefore, it is clear that the grounds for appeal by the defendant 2 and the prosecutor are all unacceptable.

Therefore, under Article 364(4) of the Criminal Procedure Act, the appeal against the defendant 2 by the defendant and the prosecutor is dismissed. It is so decided as per Disposition.

Judges Cho Young-dong (Presiding Judge)