The meaning of the purpose of evading conscription or call;

The purpose of evasion of conscription or call-up includes cases where there is no basis to restrict the purpose of being exempted from conscription or call-up under the Military Service Act and other Acts and subordinate statutes, and it can be practically evaded.

Article 82(1) of the Military Service Act

Defendant

Prosecutor

(N)Attorney Hong-young

Daegu District Court Decision 77No2465 delivered on March 16, 1979

The original judgment is reversed, and the case is remanded to the Daegu District Court Panel Division.

The prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment of the court of first instance, the fact that the defendant committed an act as stated in the judgment can be recognized, but the so-called so-called constitutes a fraudulent act as stipulated in Article 82 (1) of the Military Service Act, and even though the above so-called constitutes a fraudulent act as stipulated in the above Article, a person transferred to supplemental service for the purpose of evading exemption as stipulated in the Military Service Act or other Acts and subordinate statutes has a duty to respond to a defense call by the age of 40, and there is no way to exempt the defense call itself except as stipulated in Article 41 (2) of the Military Service Act (Article 41 of the same Act) from the duty of supplementary service. Thus, in order to protect those in an unstable state until they reach 40 years of age, the Commissioner of the Military Manpower Administration, under the direction of the President, set the guidelines for treatment of active service personnel and defense who was transferred to supplemental service for the purpose of evading military service, and the person who was transferred to supplemental service for the purpose of evading the above decision or who was called for exemption from military service for the same purpose.

However, Article 82 (1) of the former Military Service Act provides that a person who has fled, diving, bodily injury, or fraudulent act for the purpose of evading conscription or call shall be punished. Thus, the purpose of evasion of call shall not be limited to the purpose of exemption under the Military Service Act and other Acts and subordinate statutes, and in a case where the purpose of evasion of call-up may be avoided, and as long as a fraudulent act, etc. was committed for the same purpose, there is no reason to exclude it from the category of Article 82 (1) of the same Act, and there is no restriction on the method of fraudulent act. Therefore, the court below held that the court below erred by misapprehending the legal principles of Article 82 (1) of the same Act, which affected the conclusion of the judgment.

Therefore, the original judgment is reversed and remanded in accordance with Articles 391 and 397 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Sap-ho (Presiding Justice) Man-ho (Presiding Justice)