[병역법위반등의범죄처벌에관한특별조치법위반][공1990.4.15.(870),830]
A prisoner for not less than 6 months is excluded from enlistment, and a prisoner's failure to comply with a call according to detailed implementation rules of military administration falls under a justifiable reason.
In the detailed implementation rules of military administration on September 1, 1974, a prisoner who has been sentenced to enlistment for not less than 6 months is excluded from enlistment, and if the provision was revised on July 11, 1975, and the provision differently applies to a convicted prisoner who has been sentenced to imprisonment in relation to the situation necessary for a private teaching institute, even though the provision was changed on July 11, 1975, there is no evidence to prove that the criminal facts of which the defendant was sentenced to imprisonment are related to the situation requiring a private teaching institute or that the defendant was aware of the change of the policy, and it is not always reasonable to treat the person required due to the situation requiring a private teaching institute as corresponding to the convicted prisoner caused by a
Article 77 of the Military Service Act and Article 2(2) of the Act on Special Measures for the Punishment of Crimes in Violation of the Military Service Act (repealed by Act No. 3696, Dec. 31, 1983)
Supreme Court Decision 81Do2257 Delivered on July 27, 1982
Defendant
Prosecutor
Attorney Kim J-jin
Seoul High Court Decision 82No1465 delivered on November 4, 1988
The appeal is dismissed.
We examine the prosecutor's grounds of appeal.
The court below reversed the judgment of the court of first instance against the defendant on the ground that there is no provision that the defendant is excluded from the list of enlistment for 6 months or longer in the detailed implementation rules of military administration on September 1, 1974, since the defendant did not enlist in the list of the candidates for enlistment, the court below's decision on July 11, 1975 on the ground that the above implementation rules were amended and applied differently to the convicted prisoners who were punished in relation to the above implementation rules on July 11, 1975, but there is no evidence to find that the criminal facts of the defendant were related to the requirement of a private teaching institute or that the defendant was aware of the change in the implementation rules on the above implementation rules on July 1, 1974, or that it is not reasonable to treat them as the convicted prisoners due to the requirement of a private teaching institute. In light of the fact that there is no justifiable reason for the defendant's act, the court below reversed the judgment of first instance and acquitted the defendant. In light of the records, it cannot be accepted.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won