The elements of abandonment of duties

An act of deducting the parts of a vehicle from non-exploited items as if the non-exploited items were received in the course of performing the duties, shall not be deemed a case where the non-exploited items were not performed without justifiable reasons, such as a food neglect or renunciation of duties

Article 122 of the Criminal Act

A and two others

(N) Attorney B (Defendants)

High Military Court Decision 77 High Military Air Port294 delivered on July 29, 1977

Defendant A’s appeal is dismissed.

80 days under detention prior to the rendering of a judgment prior to the rendering of such judgment shall be included in the term of the detained punishment.

The part of the judgment of the court below against Defendant C and D shall be reversed, and that part of the case shall be remanded to the High Military Court for Armed Forces.

First, as to Defendant A’s appeal, the Health Unit

As the grounds of appeal, the defense counsel asserts that “the original trial has violated the rules of evidence and thereby has violated the rules of evidence which affected the judgment,” and it does not appear that the judgment of the court below has violated the rules of evidence or has violated any other laws.

Therefore, Defendant A’s appeal is dismissed on the ground that it is without merit.

Next, we examine Defendant C and D’s grounds of appeal.

According to the reasoning of the judgment of the court below, the above defendants, as a distribution officer or receipt officer of the attached units with respect to weapons goods, received the whole parts of the vehicles from their respective superior units and made a normal dispatch to the vehicles of their respective subordinate units on 17 December 17, 1976 and on 17 January 17, 1977, since the co-defendant A, who has a duty to remove weapons from the subordinate units, has breached his duty to arbitrarily deduct the parts of the vehicles from the parts of the vehicle at the time of original adjudication by arbitrarily deducting the parts of the vehicle from the parts of the vehicle at the time of original adjudication in violation of his duty, the above defendants were judged guilty by applying Article 122 of the Criminal Act on the crime of

However, the duty stipulated in Article 122 of the Criminal Code is a case where the defendant does not perform his duties without justifiable reasons, such as a food neglect or renunciation in connection with his duties. In this case, if the defendant arbitrarily deducts some of the items from the non-exploiting to the non-exploiting officer when he performs his duties to receive the non-exploiting part of the items, it cannot be said that there is an error of law in the process of receiving them, and it does not constitute a case where the defendant does not perform his duties.

Thus, the court below accepted the defendants' grounds of appeal, and reversed this part of the judgment below and remanded this part of the case to the court below. As to the inclusion of the number of days of detention prior to the pronouncement of judgment against the defendant A in accordance with Article 57 of the Criminal Act, it is so decided as per Disposition by the assent of all participating judges by applying Article 57 of the Criminal Act.

Justices Yu Tae-hun (Presiding Justice)