In a case where a defendant, who is a public duty personnel, was indicted for violation of the former Military Service Act by leaving his service without a justifiable reason, the case holding that mental disorder such as a defendant's depression constitutes "justifiable cause" as stipulated in subparagraph 1 of Article 89-2 of the same Act due to a reason not attributable to the defendant.

In a case where the Defendant, who is a public duty personnel, was indicted for violation of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013; hereinafter “Military Service Act”), on the ground that he left his service for 13 days without justifiable grounds, the case holding that the lower court erred by misapprehending the legal principles as to “justifiable cause” under Article 89-2 subparag. 1 of the former Military Service Act, which found the Defendant guilty on the ground that the Defendant’s mental disorder constitutes “justifiable cause” under Article 89-2 subparag. 1 of the same Act, on the ground that the Defendant’s aforementioned mental disorder falls under “justifiable cause” on the ground that the Defendant was not responsible for the Defendant, on the contrary to the following circumstances: (a) the Defendant’s treatment and custody officer is consistent with the doctor who treated the Defendant and the director of the Medical Treatment and Custody Office; and (b) the Defendant’s treatment and custody office determines that there was a serious depression; and (c) the Defendant’s mental disorder is likely to cause.

Subparagraph 1 of Article 89-2 of the former Military Service Act (Amended by Act No. 11849, Jun. 4, 2013)

Defendant

Defendant

Attorney Kim Sang-hee

Incheon District Court Decision 2013No3573 Decided April 18, 2014

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Article 89-2 Subparag. 1 of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013) provides that “Any person who deserts from his service or does not serve in the pertinent field for at least eight days in total without justifiable grounds shall be punished by imprisonment for not more than three years,” and “justifiable grounds” refers to grounds that justify the nonperformance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, etc. by the decision of the Commissioner of the Military Manpower Administration, i.e., reasons why a person who deserts from service cannot be responsible for such reasons as illness (see Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004; Supreme Court Decision 2010Do2514, May 13, 2010, etc.).

2. The court below acknowledged that the defendant was absent from work without permission due to mental illness at the time of committing the crime of this case, and found the defendant guilty of the charge of this case on the ground of its stated reasoning.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the evidence duly adopted and examined by the court below and the record, the following facts are revealed.

1) The Defendant, who was born in 191 and was divorced by her parents on around 2002, the starting date of the elementary school student, was 1991, and was unable to adapt well to school life due to the outbreak of depression. Around 2005, the Defendant retired from the high school that was going around 2007, since her mother’s economic difficulties overlap with Nonindicted Party 1’s disease.

2) From around August 2008, the Defendant has been continuously receiving medical treatment for depression in the Galchoology. The Defendant has a mental family relationship with the Defendant, such as suffering from the quality of liver, or attempted suicide through a mental fission. The Defendant’s mother also had been receiving medical treatment in the Galchoology by showing serious ties and depression since August 2007.

3) The Defendant, even in the psychological examination that was conducted at the time of a draft physical examination, was recommended to receive a boundary assessment by depression, but the Defendant was also urged to undergo a subsequent examination and job seeking difficulties if the records of mental illness remain, to respond to the rest of the public interest service personnel call-up, and from September 9, 201, the Defendant began to serve as public interest service personnel at ○○ Women High School belonging to the Incheon Metropolitan Office of Education from September

4) On February 15, 2013, one year and five months elapsed thereafter, the Defendant was detained due to an act of leaving his service for nine days from around February 15, 2013 to around February 27 of the same month, and was indicted for violating the Military Service Act by the Seoul Western District Court 2013Kadan834, and was sentenced to imprisonment for six months and two years of suspended execution on July 5, 2013, and the said judgment became final and conclusive on the 13th of the same month.

5) After having been sentenced to the above suspended sentence, the Defendant left 14 days from the day from July 19, 2013 to the day from July 24, 2013, as stated in the facts charged in the instant case, and left 4 days (excluding Saturdays and Sundays) as well as 2 days from the 29th and following the same month, 8.1th and the following day of August of the same year, 4 days from the 7th to the 12th day of the same month (excluding Saturdays and Sundays), and 13 days from the 14th day of the same month.

6) Even after being sentenced to a suspended sentence as above, the Defendant stated that he was frighten and frighten, who was frighten of people, and was unable to take the water surface well, and eventually went out of service. Around that time, the Defendant went through a new change of service guidance officer and conflict with the newly changed service guidance officer, and sent them only at home without any particular day during the period of his leave of service.

7) On September 19, 2013, the Defendant was rescued by a police officer while attempting to kill a person at the Mapo School in Seoul, and the Medical Treatment and Custody Center submitted to the lower court the notice of the result of the mental appraisal to the Defendant, stating that “The present state of the Defendant is a patient with severe depression, apprehension, unstable emotional distress, suicide accident, unconstrutious accident, interest or enjoyion, degradation, social degradation, chilling, overall decline in human relations, and influence, it is presumed that the present mental state was presumed to have been in a state of mental disorder whose capacity to change things and decision-making ability was lowered at the time of the instant crime. In the future, it is presumed that there was a risk of repeating a crime. It is presumed that there is a relationship between the instant crime and mental illness, and that it is difficult to maintain military service at the present time, and that it is necessary to undergo adequate mental treatment and treatment of feed after it is necessary.”

8) A medical doctor Nonindicted 2, who consulted and treated the Defendant since 2008, is treated as a matter of serious depressions and attempts to commit suicide several times in a medical certificate prepared on September 2013 and around November 201, and expressed that the need for hospitalized treatment is needed because the risk of suicide is very high.

B. In light of the above legal principles, in light of the following circumstances: (a) the Defendant, from the due date of a year to the date of a divorce, was suffering from depression; (b) the Defendant’s mother and other family members are likely to have influenced the occurrence of depression by the Defendant; (c) the Defendant started to serve as public interest service personnel without actively treating his future after being recommended to provide depression at the time of the draft physical examination; (d) the Defendant was sentenced to a suspended sentence due to the violation of the Military Service Act due to the renunciation of his service; (e) the Defendant’s treatment and custody director, consistent with the doctor and the director of the medical treatment and custody office, led to severe depression by the Defendant; and (e) the Defendant appears to have seen the risk of suicide and suicide; and (e) the Defendant’s mental disorder is likely to cause difficulty in continuing his service as public interest service personnel; and (e) the Defendant’s mental disorder is deemed to fall under “justifiable cause as prescribed in Article 89-2 of the Military Service Act” as a reason not attributable to the Defendant.

C. Nevertheless, the court below found the defendant guilty on the facts charged in this case, while recognizing that the defendant was in a state of mental and physical disability, which lacks the ability to discern things or make decisions due to depression at the time of the crime in this case. In so doing, the court below erred by misapprehending the legal principles on “justifiable cause” under Article 89-2 subparag. 1 of the Military Service Act, which affected the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)