Whether it constitutes a false report on “military affairs” under Article 38 of the Military Criminal Act, which falsely reported that the injury of a soldier was caused by the bet and the injury was caused by the bet (affirmative)

The false report on the fact that the causes of the injury occurred between soldiers, despite the occurrence of an injury due to the salvation, was made by falsely reporting the causes of the accident in the military force and by concealing the accident in the military, resulting in interference with the military administrative procedures corresponding to the management action of the military force, including the exercise of disciplinary power and the exercise of military justice power, and other measures to prevent the recurrence of the accident in the military, and thus, it constitutes a case that causes or may cause a serious obstacle to the performance of the military force's duties. Thus, it constitutes a false report on the "military affairs" under Article 38 of the Military Criminal Act.

Article 38 of the Military Criminal Act; Article 443 of the Military Court Act

Defendant

Prosecutor

Attorney Park Jae-jin

Maritime Operations Headquarters General Military Court Decision 2005Da15, 16 decided January 17, 2006

The judgment of the court below shall be reversed, and the case shall be remanded to the general military court at the Navy Operation Headquarters.

We examine the reasons for the non-pharmaceuticalal dismissal.

According to the reasoning of the judgment below, the court below found that the defendant and the victims completed their duties of support for military bad faith and purely personal meetings were met, and that the defendant 1 et al. were deprived of the above non-indicted 1 et al. for two weeks of treatment without any specific reason as a result of drinking, and that the above non-indicted 1 et al. appealed after returning to the military unit on June 19, 2005, notified the non-indicted 1 of the result of medical examination conducted by the National Armed Forces of the Republic of Korea (U.S.) Special District Hospital of the Republic of Korea on the same day that there was no particular error in the result of the medical examination conducted by the non-indicted 1, and it is difficult to recognize that the defendant's injury was caused by the non-indicted 1's request, and it is difficult to recognize that the defendant was not guilty of the facts related to the above military operation or the facts related to the defendant's duty, such as the provision of Article 38 of the Military Criminal Act and the principle of no punishment without law.

The court below's explanation that the elements of Article 38 of the Military Criminal Act should be strictly interpreted in light of the purport of the provision or the principle of no punishment without law should be justified. However, even so, the meaning of "military affairs" provided for in the above provision shall not be limited to "matters related to combat operation, operation, education, and training, which cause a serious disability or can occur according to the contents of the false report" and it shall not be interpreted as limited to "matters related to the performance of military affairs". In addition, even according to the interpretation of the court below, the defendant's false report shall not be made by falsely reporting the causes of a vacancy in the military force and concealing the accident between soldiers, thereby hindering the military administration procedures corresponding to the management of the military forces, such as the exercise of disciplinary power and the prevention of recurrence of the accidents caused by the military force, and therefore, it shall be deemed that it constitutes a matter related to the application of Article 38 of the Military Criminal Act and Article 43 of the Military Court Act to the defendant not guilty.

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 Ahn Dai-hee (Presiding Justice)