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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant, by misapprehending the legal principles, did not respond to a muster notice even after he/she received a muster notice on the ground of a man-made disorder, a man-made disorder, and a sex change disorder.
The grounds for non-compliance with the call of the defendant are not satisfied because they constitute justifiable grounds under Article 88(1) of the Military Service Act.
Even if it is not so, the defendant's non-compliance with the call-up of a mental disorder above constitutes an act of emergency evacuation and thus, illegality is excluded, and there was no ability or decision-making ability to discern things at the time of committing the crime, and there was no possibility of expectation to respond to the call, therefore there is a reason to reject the call.
B. The sentence imposed by the lower court (six months of imprisonment and one year of suspended execution) is too unreasonable.
2. Determination
A. Legal principles 1) Whether the former Military Service Act constitutes a justifiable ground under Article 88(1) of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013; hereinafter the same applies)
A) “Justifiable reason” under Article 88(1) is, in principle, premised on the existence of an abstract military service and the recognition of its performance. However, it should be deemed that there is a reason that may justify the nonperformance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, etc., i.e., that is, a cause not attributable to a person who has failed to perform the military service, such as a disease, etc. (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004). According to the evidence duly adopted and examined by the lower court, the Defendant was subject to the call-up of the public duty personnel after having been sentenced to Grade IV in the physical examination on November 25, 201, and the Defendant was a dead-type on the face of the 10th century and a sexual change (mal identity disorder).