(a) Presumption of the purpose of evading military service in relation to the crime of evading military service;

(b) A case recognizing the intention of unlawful acquisition of special robbery of military supplies;

A. Article 30 of the Military Criminal Act provides that a crime of evading military service shall be committed for the purpose of evading military service. However, if a soldier has escaped from military service without permission from a military unit to which he/she belongs, barring any other circumstances, it shall be presumed that he/she had an objective of evading military service. Since the crime of evading military service is completed simultaneously with the act of escaping from military service, any circumstances thereafter do not affect the establishment of

B. The case holding that, in case where the defendant threatened a gun holder with the gun and charged the gun with the gun with the gun, and ordered its subordinate unit members to monitor whether the gun was discharged from the gun, the defendant transferred the gun to his own control and made a disposition of use that cannot be exempted from the gun, and thus, even though the subordinate in possession of the gun was later followed by the defendant's command when the defendant was absent from the gun, it cannot be said that the defendant did not have any intention of unlawful acquisition of the military supplies of the gun for the special robbery of the gun, on the ground that there was no intention of unlawful acquisition of the military supplies for the gun, even though the subordinate in possession of the gun was later followed by the defendant's removal from the gun, and then the gun was dispatched to the original possessor.

(a) Article 30 of the Military Criminal Act; Article 75 of the Military Criminal Act; Articles 334 and 333 of the Criminal Act;

A. Supreme Court Decision 70Do1092 decided Jul. 28, 1970 (No. 18B type70) 85Do2674 decided Feb. 11, 1986 (Gong1986,485)

Defendant

Defense Counsel Seoul General Law Firm, Attorneys Song Man-man et al., Counsel for the defendant

High Court Decision 94No329 delivered on March 23, 1995

The appeal is dismissed.

One hundred days of detention days after an appeal shall be included in the original sentence.

We examine the grounds of appeal.

1. As to the crime of evading military service

It is discussed that Article 30 of the Military Criminal Act requires the purpose of evading military service, but it is presumed that there was a purpose of evading military service, unless there are other circumstances, if a soldier has been absent without permission from a military unit to which he belongs. Since the crime of evading military service is completed simultaneously with the act of evading military service, any circumstances thereafter do not affect the establishment of a crime (see Supreme Court Decision 85Do2674 delivered on February 11, 1986).

According to the records, the defendant, as an officer who graduated from the Korea Army Academy at Army, committed a large accident and notified the truth to the society in order to correct the downcoming of the military unit. Before committing the crime of this case, he left the joint defendant 1, a co-defendant of the court below, who is an accomplice, by disclosing the motive for committing the crime, and again returned to the head of the company under his jurisdiction through the so-called "the co-defendant of the court below." The defendant was recognized to have withdrawn from the military unit while taking a gun and taking away the vehicle, and voluntarily surrendered as planned by approximately nine hours after leaving the military unit, but the above circumstance alone is not deemed to have no purpose to evade military service. Thus, the judgment of the court below which punished the defendant as a crime of evading military service is just, and there is no reason to believe that there is no error of law in the misapprehension of legal principles as discussed in the judgment below.

2. As to the special robbery of Military Supplies

Examining the evidence admitted by the court of first instance as cited by the court below in comparison with the records, the defendant stolen K-1 small gun in the building commander of the company belonging to the court below and charged ball cartridges, and ordered the co-defendant 2 of the court below who was on duty as his own small gun, to leave the above small gun to the government of Lee Jong-16, who was on duty as his own large gun, and was on duty as his major sick soldiers belonging to the court of first instance, and threatened the above government by "a small gun that has been on duty", "a small gun that has been on duty", and then threatened the above government. After receiving M-16 small gun possessed by the above government of this government of this case who was on duty and charged with 15 ball cartridges, the court below ordered the co-defendant 2 of the court below to monitor whether the person was out of the inside gun of the court of first instance, and it cannot be seen that there was an error in the rules of evidence by entering the court below's judgment that the defendant's co-defendant 2 of this case's total strength was on duty to monitor M-16.

In addition, if the facts are as duly determined by the court below, the defendant transferred the above M-16 small guns from his possessor to his possession and disposed of them for use that cannot be exempted from his possession. Thus, even if the joint defendant 2 of the court below, who held the above small guns, under the direction of the defendant, went out of the sick ward after he followed the defendant when the defendant was absent from the sick ward last, and the defendant was removed from the above M-16 small guns and then left the small guns to the above government, the defendant did not have any intention to obtain illegal acquisition of the above M-16 small guns. There is no reason to view all the arguments.

3. As to the assertion of unreasonable sentencing

As in the case of this case, it cannot be viewed as the ground of appeal on the ground that the sentence of two years imprisonment is unreasonable, and therefore, no ground of appeal exists.

4. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)