Defendant

Prosecutor

Dried water

Attorney Park Ho-de et al.

Suwon District Court Decision 2005Kadan232 decided Jun. 10, 2005

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

Since the crime of escape from service, which is the facts charged of this case, is a continuous crime, not an immediate crime, and the defendant's crime of escape from service was terminated on October 25, 2004, and thus the prosecution of this case was instituted before the expiration of the statute of limitations, the court below erred by misapprehending the legal principles, which judged the crime of escape from service as an immediate crime, and thereby acquitted the defendant on the grounds that the statute of limitations has expired for the crime before 202

2. Determination

A. The facts charged in this case

The Defendant, as a public duty personnel, was absent from his service for eight days in total due to the Defendant’s failure to work at the Incheon Metropolitan City Waterworks Headquarters (the name of the office omitted) office on November 12, 2001, November 14, 2001, December 5, 2001, December 12, 2001, December 12, 2001, December 12, 2001, December 27, 2001, December 27, 2001, December 31, 2001, January 4, 2002; and October 25, 2004, without justifiable reasons.

B. The judgment of the court below

Article 89-2 subparag. 1 of the current Military Service Act provides that "a person who is called for defense and serves in the military without justifiable grounds and has left or has not served in the field concerned for a total period of not less than eight days." Article 85 of the former Military Service Act (amended by Act No. 2259 of Dec. 31, 1970, and enforced January 1, 1971, all of the provisions on the deprivation of service of a person called for defense have been deleted, and the provisions on the deprivation of service of a person called for defense have been replaced by the provisions on public duty personnel) has punished "a person called for defense and serves in the military shall not obey a legitimate order of the commander, or has left his service for not less than three days without justifiable grounds." Article 79 of the Military Service Act provides that "a person who is a soldier of the Republic of Korea without permission fails to arrive at the place of service or designated place, or within the designated time, without permission."

First of all, with respect to the crime of evading without permission under the Military Criminal Act, an act constituting a constituent element is established immediately without reaching the time immediately or designated. Thus, Article 79 of the Military Criminal Act is an immediate crime, and at the same time, the work place or designated place is completed at the same time without permission, and the head of the period of escape, which is the circumstances thereafter, does not affect the establishment of the crime of evading without permission (see Supreme Court Decisions 95Do1588 delivered on May 10, 1996; 83Do2450 delivered on November 8, 1983), and it is clear that the crime of evading without permission under the Military Criminal Act is immediately committed. Even in the case of a crime of evading from service of a person who is responsible for the defense call-up under the former Military Service Act, even if the person who is called-up and serves has been completed at the time of leaving his service, and even if the person continues to serve after that, it is also reasonable to view that the act of evading from service continues to serve without permission and not immediately return to service.

On the other hand, since the defendant was absent from office for two days before November 12, 2001 and June 13, 2001, which was the date of the crime indicated in the above facts charged, the defendant left office for at least eight days from June 9, 2001 to December 31, 2001, and the crime of escaping from office was completed on December 31, 2001, and the statute of limitations for the defendant was expired on December 31, 2004, and the prosecutor was on February 14, 2005, and the prosecutor was absent from office without permission on June 9, 2001 and June 13, 201.

Therefore, among the facts charged in this case, the part of the part of the prosecution of this case 6 days from November 12, 2001 to December 31, 2001 constitutes grounds for acquittal upon expiration of the statute of limitations, but the remaining part of the part of the prosecutor's non-performance of service on October 25, 2004, which was prosecuted for a single crime, does not meet the requirement of a non-performance of service for not less than 8 days, and thus, it was acquitted under the former part of Article 325 of the Criminal Procedure Act, and thus, the judgment of not guilty was rendered without a separate sentence of acquittal.

C. Determination of party members

As properly explained by the court below, instituting a public prosecution only for the fact that a prosecutor has retired from service for not less than eight days retroactively from the date of his voluntary renunciation of service would bring a significant disadvantage to the defendant, and as such, the crime of escaping from service is an immediate crime. Accordingly, as recognized by the court below, part of the facts charged in this case constitutes a ground for acquittal and does not meet the remaining elements, so the court below should pronounce an acquittal pursuant to the former part of Article 325 of the Criminal Procedure Act. The decision of

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Han-Jil (Presiding Judge)