(a) The credibility of fact-finding that he/she could have been in charge of smelling after 6 hours of cigarette butts away from the firearms import guns highly inflammable;

B. If the performance of duties is not bona fide, the nature of the abandonment of duties (negative)

C. The meaning of "justifiable order" as stipulated in Article 47 of the Military Criminal Act

A. In the event that tobacco shots were diminished in the firearms import guns containing high inflammable gas as possible, barring special circumstances, barring special circumstances, it seems that severe smoke and smell would have occurred immediately after the commencement of a shot situation, and it is difficult to understand that the shots continue to be smoked without any smoke or smell for 6 hours or any smoke or smell of highly inflammable substances.

B. In Article 122 of the Criminal Code, when a public official abandons his duties without any justifiable reason, the term "where he abandons his duties without any justifiable reason" means that a public official abandons his duties or deserts his duties without any justifiable reason, and it does not include a case where a public official fails to faithfully perform his duties due to neglect, sense, etc. in the performance of his duties. Thus, the Defendant's residues without patrol, inspection, etc. should be deemed to have violated his loyalty duty by failing to faithfully perform his duties as a private official. However, at a similar place of work, the Defendant may intentionally waive his duties at a similar place of work (at a distance of two meters from the situation room to the time when the Defendant takes place, which has been set off, there is no reason to view that the Defendant intentionally renounces his duties as a private official or deserts his duties.

C. “Justifiable order or rule” as stipulated in Article 47 of the Military Criminal Act refers to an order or rule that is established by an institution in charge of the right of access with respect to the important and physical specific matters necessary for the smooth administration of water according to the delegation by the law, and refers to an order or rule that falls under the substantial contents of punishment that falls under the legislative matters under the legislative matters. Thus, the provisions on the distribution of the reserve forces, firearms safety management regulations, the Reserve Forces Education and Training General Management Regulations, etc. cannot

A. Articles 66(2)1 and 73(1)2 of the Military Criminal Act; Article 122(c) of the Criminal Act; Article 47 of the Military Criminal Act

B. Supreme Court Decision 70Do1790 delivered on September 29, 1970, 81Do2538 delivered on September 14, 1982, and 82Do1633 delivered on September 28, 1982, Supreme Court Decision 68Do1846 delivered on February 18, 1969, and 71Do845 delivered on June 22, 1971, and 82Do399 delivered on July 27, 1982

Defendant 1 and two others

1 and 2 Military Prosecutors (defendants 3)

Attorney Park Il-il, Park Ho-ho, Song-ho

High Military Court Decision 83 High Military Branch Decision 190 delivered on November 15, 1983

The part of the judgment of the court below against the defendant 1 and 2 shall be reversed, and that part of the case shall be remanded to the High Military Association of Korea.

The military prosecutor's appeal against Defendant 3 is dismissed.

1. Defendant 1’s ground of appeal is examined.

According to the reasoning of the judgment of the court of first instance as cited by the court below, the court of first instance recognized the fact that the defendant 1 1 diversed tobacco in the front knife in the front knife of the front knife, on January 25, 1983, 20:45, and discovered to the front knife in the front knife knife knife with the shock of the front knife of the front knife, and caused gross negligence out of the front knife, the front knife knife knife knife knife knife knife knife knife knife knife knife knife knife.

However, according to the reasoning of the military prosecutor’s protocol, each protocol of statement of efinite and written statement of efinite preparation, the above defendant’s time of leaving the arms at around 1.25.20:5, and the time of being in charge of smelling for the first time by the soldiers working for the arms at around 02:48 or 02:50, the following day is recognized. Thus, it can be seen that tobacco finite was reduced to the gun import guns, which are inflammable substances, only after about 6 hours after the first instance court recognized that the tobacco finite fell from the gun import guns, and that he was in charge of smelling around the arms.

However, according to the testimony of the witness of the first instance trial, the witness testimony of the second instance trial, and the witness witness testimony of the second instance trial who implemented the sense of the fire site of this case, it is recognized that the above defendant's place where the tobacco sprinked by the above defendant was left together with the gun import guns buried by the Arabic oil, etc., and that the oil was left up on the floor. On the other hand, when the witness testimony of the above oil sprinked with the oil sprinked, the fire may be caused if the oil sprinked in the upper part, and when the original sprinked state begins, it can be caused by the fire, and when the original sprinked state begins, it is said that the said inorganic building had been installed with a ventilation hole. In addition, according to the records, it is recognized that there was a sprinking machine installed in the above inorganic building.

In light of the above facts, in a case where tobacco shots were diminished in the firearms import guns containing high flammable gas as possible, barring special circumstances, it seems that smoke and smell would have occurred immediately after the commencement of a decoration, barring special circumstances. As above, it cannot be said that the continuation of a decoration without any smoke or smell for 6 hours or any smoke of highly inflammable substances.

In such a situation, in order to determine that a decoration caused by the instant fire is the cause of the instant fire, we should first examine the nature of oil to be buried in a firearms importer, etc., which is a inflammable substance, and various circumstances such as the degree of oil to be buried in a firearms importer box at the time, the air circulation of weapons, and the climate conditions in the surrounding areas, and then consider whether it is possible to grant a decoration for a long time as above.

Ultimately, the judgment of the court below is erroneous in the incomplete hearing and the determination of evidence contrary to the empirical rule, which affected the conclusion of the judgment, and thus, it cannot be maintained at this point without any other judgment.

2. Defendant 2 and his defense counsel’s grounds of appeal are also examined.

For the purpose of Article 122 of the Criminal Act, when a public official abandons his duties without justifiable reason, the term “when he abandons his duties” means that a public official abandons his duties or deserts his duties without justifiable reason, and does not include a case where the public official fails to faithfully perform his duties due to neglect, neglect, care, etc. (see, e.g., Supreme Court Decision 70Do1790, Sept. 29, 1970; Supreme Court Decision 81Do2538, Sept. 14, 1982; 82Do1633, Sept. 28, 1982).

According to the reasoning of the judgment of the court below, the court below determined that Defendant 2’s act of abandoning the above duty while on the ground that Defendant 2 was extremely difficult due to a reduction of time, even though he was ordered by the commander by patrol, inspection, etc., such as the performance of regulations, the working conditions of various workers, and fire prevention supervision of government articles, etc., while on the ground that he was ordered by the commander as a private officer, he did not work in the situation room where he was working in the private office, and did not perform the patrol during the patrol time, and he was exempted from fighting, etc. on the ground that he did not perform the above duty while on the part of the private office, and he did not perform the patrol during the patrol and inspection.

However, according to the results of the on-site inspection by the first instance court, the above defendant 1 and the court testimony by the second instance court, and the prosecutor's statement, it is acknowledged that the above defendant used the inside-site room as a situation room by dividing one of the internal secretary's seats into a low board room, and the distance from the situation room to the invasion of the above defendant is only within 2 meters, and the above defendant has taken a reduction of the body on the same day, and he was dispatched immediately after receiving a fire report on Jan. 26, 1983. In light of the above facts, it is recognized that the above defendant did not patrol and inspect, etc. and did not faithfully perform his duties as a part of the first instance court, and that the remaining part of the defendant without performing his duties as a part of the first instance court, and thus, it cannot be deemed that the defendant intentionally left his office or left his office as a part of his duty because he can not be immediately broken at a similar place of work.

After all, the judgment of the court below is erroneous in interpreting the law on the elements of a crime of abandonment of duty, and it is reasonable to discuss this point.

3. The prosecutor's ground of appeal against the defendant 3 is examined.

Article 47 of the Military Criminal Act provides that an institution in charge of the voting rights shall enact an order or rule that falls under the substantial contents of punishment, which is a legislative matter, even though it is important and concrete matters necessary for the voting action with the delegation by the law, and is a party member's case (see Supreme Court Decision 68Do1846, Feb. 18, 1969; Supreme Court Decision 71Do845, Jun. 22, 1971; Supreme Court Decision 82Do399, Jul. 27, 1982).

According to the records, Article 26 of the Regulations on Assistance to the Distribution of Reserve Forces (Rules 403-10 of the Army Regulation), Article 19 of the Education and Training Site Management Regulations (Rules 141-1 of the Army Regulation), and Article 3 of the Safety Regulations (Rules 5-1 of the Regulations on the Education and Training Site of Reserve Forces) mentioned in the facts charged against Defendant 3 cannot be deemed to constitute justifiable orders or rules under Article 47 of the Military Criminal Act, which are stated in the above facts charged against Defendant 3, in light of the contents of each provision. Thus, the court below's decision to the same purport is just and without merit, and there are no errors in the misapprehension of legal principles, such as theory of lawsuit.

4. Therefore, the part concerning Defendant 1 and 2 of the judgment of the court below is reversed, and that part of the case is remanded to the Gun Council of the court below. The prosecutor's appeal against Defendant 3 is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)