[1] Whether the provisions of the Civil Act concerning the calculation of the period apply to the calculation of the period when the period "three days from the date of call" under Article 88 (1) 2 of the Military Service Act is calculated (affirmative)

[2] In a case where the Defendant, who is a public duty personnel call-up, was indicted for violating the Military Service Act on the ground that he received a muster notice under the name of the Commissioner of the Military Manpower Administration to enlist until 13:30 on August 4, 2011, but failed to enlist until 3 days after the call-up notice was passed, the case affirming the judgment below which acquitted the Defendant on the ground that, according to the provisions of the Civil Act on the calculation of the period, August 8, 201 falls under the last day of the third third period from the call-up, and that in light of all the circumstances, the Defendant’s failure to enlist within the prescribed period constitutes “justifiable cause” as prescribed by Article 88(1)

[1] Article 155 of the Civil Act provides, “The calculation of a period shall be governed by the provisions of this Chapter unless otherwise provided by the Acts and subordinate statutes, judicial disposition, or juristic act.” In the calculation of a period, unless otherwise provided by the relevant Acts and subordinate statutes, the provisions of the Civil Act shall apply. Meanwhile, Article 88(1)2 of the Military Service Act provides, “If a person who has received a notice of convening a public interest service personnel call fails to respond to the call after three days from the call of the call of the call of the call of the call of the call of the call of the call of the call of the call of the call of the call of the call of the call of the call of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up of the call-up.”

[2] In a case where the Defendant, who is a public duty personnel call-up, was indicted for violating the Military Service Act on the ground that he did not enlist until the third day after having received the call-up notice under the name of the Commissioner of the Military Manpower Administration, even though he did not enlist until August 4, 201, the Court affirmed the judgment below which acquitted the Defendant on the ground that, in light of all circumstances, the first day is not included in the calculation of the period, and the last day of August 8, 2011, since the period is expired when the last day of the period is a legal holiday, it falls under the last day of the third day of the period, and since he expressed his intention to enlist in the morning on August 8, 2011, the person in charge of the Military Manpower Administration has a duty to take remedial measures, such as delaying enlistment, and even if he did not perform such duty, it was impossible for the Defendant to enlist after the late enlistment date, and thus, the Defendant failed to enlist within the period on the ground that there was justifiable reason as stipulated in Article 88(1) of the Military Service Act.

[1] Article 88(1)2 of the Military Service Act; Articles 155, 157, and 161 of the Civil Act / [2] Article 88(1)2 of the Military Service Act; Articles 155, 157, and 161 of the Civil Act; Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Attorney Jeong Jong-il

Suwon District Court Decision 2012No2204 decided October 11, 2012

The appeal is dismissed.

The grounds of appeal are examined.

Article 155 of the Civil Act provides, “The calculation of a period shall be governed by the provisions of this Chapter unless otherwise provided by the Acts and subordinate statutes, judicial disposition, or juristic act.” Thus, in calculating a period, the provisions of the Civil Act shall apply unless otherwise provided by the relevant Acts and subordinate statutes. Meanwhile, Article 88(1)2 of the Military Service Act provides, “If a person who received a notice of convening a public interest service personnel call fails to respond to the call after three days from the call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of call of a special provision on the calculation of a period of “three days from the call of call of call of call of call” as prescribed by Article 88(1)2 of the Military Service Act. Thus, the

The facts charged in the instant case reveal that the Defendant, as a person subject to the call-up of public duty personnel, was sent a notice of call-up to public duty personnel under the name of the director of the Incheon Gyeonggi Military Manpower Office to enlist until August 4, 2011, but did not enlist within three days from the date of enlistment without justifiable grounds.

According to the adopted evidence, the defendant was hospitalized at a hospital located in his place of residence on August 3, 201, which is the day before the call for the call for promotion, etc. on August 3, 201, and the defendant, on August 4, 2011, sent a telephone call to the Incheon Olympic regional military manpower office (hereinafter referred to as the "Military Affairs Administration"), who notified the defendant that it is difficult for the defendant to enlist in the designated place of call for the above symptoms, and the officer assigned the duty to enlist until 12:00 on August 6, 2011. However, since the defendant did not appear on August 6, 201, but did not appear on August 12:0, 201, and thus, the defendant did not have any duty to enlist until August 8, 201, and thus, the defendant did not have any duty to enlist in the military service for a period of 12:0 on which he did not inform the defendant that he would not have any other person in charge of enlistment on August 4, 201.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below that the defendant expressed his intention to enlist on the third day from the call for the enlistment and that there is a justifiable reason for the defendant not to enlist in the army is just. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to Article 88 (1) of the Military Service Act, or by misapprehending the rules of logic and experience and free evaluation of evidence.

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

Justices Kim So-young (Presiding Justice)