[병역법위반방조][공2005.11.1.(237),1729]
[1] The meaning of "defensive act" under Article 86 of the Military Service Act and the time when the execution thereof commences
[2] The case holding that even if a person subject to enlistment was issued a false medical examination certificate by a hospital for the purpose of being exempted from military service, such an act alone cannot be deemed to have commenced a fraudulent act
[1] The term "act of misconduct" under Article 86 of the Military Service Act refers to an act of deceiving a military administrative authority to reduce or exempt military service, despite that it does not fall under the conditions of exemption from or reduction of military service, or even if it does not fall under such physical conditions, and thus, it shall be deemed that the act of fraud was performed only when it has reached the stage of direct risk of evading the performance of military service and impairing the appropriateness of military administration to the extent corresponding to the escape, diving, or physical damage.
[2] The case holding that even if a person subject to enlistment was issued a false medical examination certificate by a hospital for the purpose of being exempted from military service, such an act alone cannot be deemed to have commenced a fraudulent act
[1] Article 86 of the Military Service Act / [2] Article 86 of the Military Service Act
Defendant
Prosecutor
Seoul Central District Court Decision 2005No457 Decided April 15, 2005
The appeal is dismissed.
1. Article 86 of the Military Service Act provides that "any person who deserts, absconds, or injures his whereabouts, or commits any deceitful act, with the intention of evading military service or having military service reduced or exempted shall be punished by imprisonment with prison labor for not less than one year but not more than three years." In this context, the term "act of deception" refers to an act of deceiving a military administrative authority to have the military service reduced or exempted, or attempted to have the military service reduced or exempted, despite not falling under any of the conditions subject to reduction or exemption of the military service, or not such physical condition. Thus, it shall be deemed that only when another act has taken the stage of direct risk of evading the performance of military service and impairing the propriety of the military administration.
2. Of the facts charged in this case, the lower court determined that: (a) on July 29, 2004, the act of Nonindicted Party 1’s phone number on which Nonindicted Party 1 was exempted from military service was informed to Nonindicted Party 2; and (b) Nonindicted Party 1 was exempted from military service; (c) on the part of the hospital located in Daegu (detailed address omitted); and (d) on the part of the hospital located in Daegu (detailed address omitted), the above hospital’s doctor was blick and rear blick, and so there is no need to separately interpret that the above change of the military service disposition was conducted by Nonindicted Party 1, 2004, with the intention of evading or exempting Nonindicted Party 1’s military service duty; and (d) on the grounds that there was a danger of directly infringing on the part of the hospital that the Defendant was exempt from military service by submitting a false report on the change of the name of the hospital that was discovered by Nonindicted Party 2 and the Defendant’s grandchildren, and thus, aiding and abetting the Defendant’s attempt to commit the change of military service.
In light of the record and the legal principles as seen earlier, the above fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the period of starting the commission of a crime violating Article 86 of the Military Service Act, as alleged in the
3. As to the remainder of the judgment below, neither the petition of appeal nor the appellate brief contains any indication in the grounds of appeal.
4. Therefore, the appeal is dismissed. It is so decided as per Disposition.
Justices Lee Yong-woo (Presiding Justice)