[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 affirming the judgment of the court below which held that if a medical certificate for military use issued by a deceitful method for the purpose of evading military service was submitted to the competent Military Manpower Administration, or it did not reach the physical examination by a deceitful method, it cannot be deemed that it did not lead to the execution of a deceptive act under Article 86 of the Military Service Act

[1] Article 86 of the Military Service Act / [2] Article 86 of the Military Service Act

Defendant 1 and one other

Prosecutor

Seoul Central District Court Decision 2004No3923 Decided March 22, 2005

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 86 of the Military Service Act provides, “A person who deserts, absconds, or injures his body or commits a deceitful act with the intention of evading or evading the duty of military service or having the duty of 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.” Here, “a deceitful act” refers to a criminal act committed under the above provisions of the Military Service Act, such as escape, locking act or damaging his body, not a physical condition that is subject to the exemption or reduction of the duty of military service, but a person who, in itself, seeks to be exempted from the duty of military service by deceiving the military administrative authority to evade or exempt the duty of military service even though he does not have such physical condition. Thus, it should be deemed that a criminal act committed under the above provisions of the Military Service Act has been committed only when the stage at which there is a direct risk of evading the performance of the duty of military service and infringing the propriety of the military administration.

2. Of the facts charged in the instant case, the lower court determined that: (a) in collusion with Nonindicted 1, etc., Defendant 2 did the following acts: (b) in order to conduct a draft physical examination; (c) in consultation with Nonindicted 1, etc., Defendant 1, and Nonindicted 2, the aforementioned Nonindicted 1, and Nonindicted 2, by deceiving a designated hospital under the instructions of the Defendants for the purpose of exempted from military service; and (d) undergo medical treatment or issuance of a medical certificate for medical use; and (c) in so doing, the first draft physical examination for a person subject to the draft physical examination; or (d) in conducting a draft physical examination by submitting an application for change of military service, along with a medical certificate for the medical use of a designated hospital, it is difficult to conduct a close examination; (c) in so doing, those who are in the mental capacity of a person subject to the draft physical examination who did not undergo a draft physical examination; and (d) there is no difference in the method of inspection or precision; and (d) in so doing, even if the Defendants did not undergo a new draft physical examination or examination by fraud.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and there is no error of law such as misconception of facts against the rules of evidence or misunderstanding of legal principles as to Article 86 of the Military Service Act, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)