Defendant 1 and one other

Military prosecutor;

Subrogation dilution

Captain Kim-hee (Korean National Ship)

Mads

6. General Military Court Decision 2005Ma6 decided June 30, 2005

The military prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The reason for appeal by the military prosecutor was that the defendants could not leave the military unit at the designated working hours by leaving the military unit in front of 5 hours and 30 hours and 5 hours and 30 hours before the military prosecutor left the military unit, and the court below failed to obtain the status of the sentry, and thus the defendants were acquitted on the ground that they cannot be the subject of the crime of the escape from the military prosecutor's office, which is erroneous in the misapprehension of legal principles as to the concept of the sentry and the elements of the crime of the escape from the military prosecutor's office.

2. Determination on the grounds for appeal

(1) The summary of this part of the facts charged and the judgment of the court below on it

The summary of this part of the facts charged is as follows: Defendant 1 was ordered to work at the guard room of each of the affiliates from May 24, 2005 to 20:00 on May 24, 2005; Defendant 2 was ordered to work at the guard station from May 13:30 to 18:30 on May 24, 2005; Defendant 1 did not attend the guard room within a designated time after escaping from the room of the guard room of the head of the watchhouse adjacent to the workplace with a view to evading military service. Accordingly, the court below found Defendant 1 not guilty of the charge of escaping from the guard room under the latter part of Article 28 of the Military Criminal Act by starting work at the designated place ( even if the Defendants were ordered to serve at the guard station from May 6, 196 to the designated place). Thus, the Defendants could not be found guilty of the charge of escaping from the guard station from the military unit by starting work at the designated time of the order.

(2) Judgment of the court below

The purpose of this crime is to punish a sentry who does not leave his/her duty or leave his/her station or who does not leave his/her station, with the eye and ear of the military unit, and the protection of the law of this crime is the safety of the boundary service, and the punishment of this crime is to punish him/her who does not leave the station within the time specified in the latter part of Article 28 of the Military Criminal Act. The purpose of this crime is to further protect the stability of the boundary service by ensuring the duty of the sentry clearly. In addition, it is judged that the concept of the sentry is the same as the concept of the sentry at the place where the sentry is working on the boundary.

According to the grounds of appeal and the written opinion of the Prosecutor's Office of the Army and the High Military Prosecutors' Office, the term "persons who have been assigned to guard as their own duties or who are assigned to flood or flood (Article 2 subparagraph 3 of the Military Criminal Act)." Here, the term "disposition" does not limit the persons subject to boundary duty to those who are actually located in the station and work at the station, but it includes the situation (or broad placement) in which the workers assigned to one worker after the lapse of the designated time in the order to work for the boundary duty are being employed in the designated station as of the working hours. Since the judgment of the court below 60Da22 delivered on May 6, 196, which was cited by the court below, was amended by Act No. 3443 on April 17, 1981 and did not add the “when the military prosecutor fails to perform his/her duties within the designated time limit,” it is reasonable to view that the Defendants are subject to the order to work for the first time after the designated order to work for the military.

Article 28 of the Military Criminal Act (amended by Act No. 3443, Apr. 17, 1981; Article 28 of the Military Criminal Act provides that "when a person does not leave his/her house within the designated hours" does not appear in the minutes of the National Assembly, however, Article 28 of the Military Criminal Act provides that "if a person does not leave his/her house within the designated hours, he/she shall be punished as the crime of leaving school," it cannot be interpreted arbitrarily as "within the designated hours after he/she was ordered to leave school," since Article 28 of the Military Criminal Act provides that "if a person does not leave his/her house within the designated hours of time after he/she was ordered to leave school, he/she shall be deemed to have been ordered to leave school 5 hours after he/she was ordered to leave school 8 hours after he/she was ordered to leave school 5 hours after he/she was ordered to leave school 8 hours after he/she was ordered to leave school 8 hours after he/she was ordered to leave school 8 hours after he/she was notified. This is also inconsistent with the principle of law.

Therefore, in the case of this case, as duly adopted by the court below and the fact-finding reply sheet, the list of workers can be confirmed at the central bulletin board after the day before and after the day of service, but since the day of this case, the military unit was conducting a shooting training for the clocks, the order of service was issued on May 24, 2005, and the defendant 1 was confirmed at around 07:50, and the defendant 2 confirmed his work at around 07:35 (198 pages, 202 of the investigation record). In the case of the above-mentioned service, the court below showed that at least 15 minutes prior to 15 minutes prior to the entry into the military room and wearing uniforms at the direction, operation officer, information officer, and security officer, carrying with the firearms, and the duty officer at least 170 minutes prior to the receipt of the 10 clocks notice and the duty officer at least 170 minutes prior to the time of the report and the duty officer at least 170 minutes.

Therefore, as stated in the facts charged in the judgment below, the defendants' act of not taking the post at the designated time 5 hours and 30 minutes prior to the commencement of a sentry's status is an act before acquiring the sentry's status, and thus, if the concept of placement is broadly interpreted as the military prosecutor's assertion, it would result in a disadvantage to the defendant contrary to the principle of no punishment without law, especially the principle of prohibition of analogical interpretation. In addition, in this case, defendant 1 is knee-free, and defendant 2 is kne-free, and defendant 1:0 - 11:00 - 12:30 on May 24, 2005 when he was absent from the training and signed on the order under the order of the above soldier's service order, it is difficult to find the defendants guilty of the above act without the reasons for the judgment of the court below (the investigation record 178, 186 on the day of leaving the military service as an opportunity to do so). Thus, it is difficult to find the defendants not guilty.

3. Conclusion

Therefore, the judgment of the court below is just and it is clear that the appeal by the military prosecutor is groundless, and thus, it is dismissed after pleading pursuant to Article 430(1) of the Military Court Act.

It is so decided as per Disposition for the above reasons.

Before the chief of a military judge, the chief of a military judge, the chief of a police officer, the chief of a police officer, and the chief of a police officer.