Defendant

Prosecutor

Kim Jong-le

Attorney Kim Jong-il (Korean National Election)

Busan District Court Decision 2006Gohap4853 Decided April 3, 2007

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Six days of detention before pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

The gist of the grounds for appeal by the prosecutor is as follows: (a) the circumstance in which the defendant extended enlistment among them; (b) in this case, the defendant expressed that he would be given a disposition of detention in a workhouse by finding in the Daejeon District Prosecutors' Office; (c) however, in the situation where he was recommended by the employees of the above District Prosecutors' Office to respond to the call; and (d) he again reported that he would be given a disposition of detention in a workhouse to the Busan District Prosecutors' Office; and (e) as a result, the enlistment agency could not know the whereabouts of the defendant, and thus, the defendant should be deemed to have escaped or reduced his whereabouts for the purpose of evading military service; and (e) even though all of the facts charged in the instant case can be recognized, the

2. Determination:

A. Summary of the facts charged in this case

On March 28, 2005, the defendant was sentenced to 10 months of imprisonment for fraud at the Busan District Court on December 22, 2005, and completed the execution of the sentence at the Busan District Court on December 22, 2005, and on December 20 of the same year, was sentenced to a fine of seven million won for fraud at the same court on December 20,

2006. 7. 12. 부산 금정구 서동 (지번 생략) 피고인의 집에서 같은 해 8. 24. 13:00까지 논산시 연무읍 금곡리 소재 육군훈련소에 입소하라는 부산지방병무청장 명의의 공익근무요원소집통지서를 전달받자, 1996년 2월경부터 2006년 5월경까지 순차로 대학진학, 공군장교선발시험 응시, 대학원진학, 사법시험 2차시험 응시, 동생의 현역병 입영, 징역형 집행, 자격시험 응시 등의 사유로 7회에 걸쳐 입영기일을 연기하여 왔고 병역법에 의하여 31세가 되는 해인 2007. 1. 1.부터 제2국민역에 편입되어 공익근무요원소집의무가 면제됨을 기화로, 소집기일인 2006. 8. 24. 12:00경 대전지방검찰청에 스스로 찾아가 위 벌금 700만원의 미납사실 및 벌금납부능력이 없음을 밝히며 노역장유치처분을 받겠다는 의사를 표시하고, 그 무렵 피고인의 동생인 공소외 1로부터 위와 같이 피고인이 소집에 응하지 아니하고 대전지방검찰청에 찾아갔다는 사실을 연락받은 부산지방병무청 대체복무팀 소속 직원 공소외 2와 위 검찰청 집행과 소속 직원 공소외 3이 협의하여 피고인에게 소집에 응할 것을 권유하면서 노역장유치처분을 집행하지 아니하고 13:46경 돌려보내자 같은 날 19:30경 부산지방검찰청에 찾아가 다시 벌금미납사실과 벌금납부능력이 없음을 밝히며 노역장유치처분을 받겠다는 의사를 표시하여 같은 날 22:50경 부산 사상구 주례3동 666 부산구치소에 노역장유치 수용됨으로써 병역의무를 기피할 목적으로 도망하였다.

B. The judgment of the court below

(1) As to the confinement in a workhouse

피고인이 공익근무요원소집통지서를 받고서도 그 소집일로 지정된 당일에 소집에 불응한 채 스스로 검찰청에 찾아가 판결이 확정된 위 벌금 700만을 납부할 능력이 없음을 밝히며 노역장유치처분을 받겠다는 의사표시를 한 사실은 앞서 본 바와 같으나, 이후 이루어진 노역장유치의 집행 및 그에 따른 구치소 수용은 피고인의 위와 같은 의사표시와는 무관하게 어디까지나 이미 확정된 형사판결에 따른 국가형벌권 집행의 일환으로 형법 및 형사소송법이 정한 절차에 따라 형집행기관이 행한 처분인바, 피고인으로서는 벌금을 완납하지 못한 이상 마음대로 그 노역장유치집행의 여부나 시기, 방법 등을 결정·선택하거나 이에 직접 어떠한 영향을 미칠 수도 없는 것이고, 이와 같은 형집행기관의 처분에 마땅히 복종하여야 할 의무가 있을 뿐이다.

(2) As to the relationship between the execution of punishment and the duty of military service

In the case of this case, on August 24, 2006, the notice date, the defendant had two obligations to obey the State punishment and to comply with the notice of convening a notice to perform the duty of military service as seen earlier, as seen earlier, and each obligation is unable to fulfill at the same time due to its nature, and it is a case where there occurs a collision and competition among the two obligations. In particular, the provisions of the relevant Acts and subordinate statutes stipulate the execution of the punishment as a reason for the reason for the postponement of the conscription, call-up, enlistment, etc. for the person liable for military service, in particular, the provisions of the Military Service Act and the Enforcement Decree of the same Act stipulate the procedure of convening the military after the postponement of the execution of the military service in relation to the execution of the sentence, but in light of the fact that the Criminal Act and the Criminal Procedure Act do not stipulate the execution of the sentence as a reason for exception such as postponement, postponement, reduction, etc. of the execution of the military service, at least, the execution of the sentence is given priority

However, as a matter of principle, Article 71 of the Military Service Act provides for reduction of and exemption from the duty to enlist in the military on the basis of the age of 31 and exceptionally provides for exemption from the duty to enlist in the military service, if there exist any specific grounds under each subparagraph of the proviso, the base date of exemption may be extended to 36 years of age. However, unlike the provisions on “convenation, call-up, and enlistment” as seen earlier, there are no provisions under each subparagraph of the proviso as to “persons under execution of punishment.” However, the Defendant, after the lapse of January 1, 2007, after the lapse of January 1, 2007, when he did not respond to call-up due to confinement in the above station, completed the execution of the above detention after the lapse of January 10, 207, thereby allowing the completion of the execution of the above detention. As a result, the Defendant’s interpretation of the relevant Act and subordinate statutes

(3) As to whether “dognet” constitutes “dognet”

Article 86 of the Military Service Act, separate from the charges of this case, provides for punishing a person who evades enlistment or call under Article 88, who has been indicted by a prosecutor on the charges of this case (the escape, bodily damage, etc. for the purpose of evading the military service). The phrase "an act of evading enlistment, etc." under Article 86 of the same Act is different from the phrase "an act of evading enlistment, etc." under Article 88 of the same Act, and unlike the phrase "an act of evading enlistment, etc." under Article 88 of the same Act, it refers to an act of evading or evading the performance of the military service duty or causing a state of evading the reduction of or exemption from the military service. Thus, the defendant's act in this case can be seen as one of his act in this case as a "in Switzerland expression of his intention to be taken a disposition of attracting the head of the Nowon-gu Office". Thus, it is unreasonable to view the defendant's new person's duty of military service (in this case) as a result of securing the defendant's disease by the state of performance, execution and execution of military service as well.

Moreover, in addition, in relation to the selection and exercise of legitimate authority under the laws and regulations of the State in the state of conflict and competition with the latter, and the result thereof (the confinement in the station, the subsequent postponement of convening a meeting, and exemption from the duty of convening a meeting according to Article 71 of the Military Service Act), the defendant has a duty to obey and accept it, and as such, the defendant has a duty to take the result therefrom. As such, under the intention of evading military service, the defendant only was expected to avoid the crime of fraud from the beginning with the above result under the intention of evading military service, and there is no evidence to acknowledge special circumstances, such as that the defendant was able to avoid the crime of fraud, and that all subsequent schedule and circumstances are active and planned under the same intention, it is difficult to evaluate it as the defendant's act and to hold the defendant liable therefor.

(4) Conclusion

In addition, as seen earlier, it is difficult to view the Defendant’s act as falling under “the network” for the purpose of evading the duty of military service. In addition, in full view of the statement on the background leading up to the Defendant’s declaration of intent to have the Defendant perform his duty of military service or detention in prison at the time indicated in the record, the Defendant’s assertion that there was no purpose of evading the duty of military service, and on the other hand, it is insufficient to readily conclude that there was “the purpose of evading the duty of military service” even based on all evidence submitted by the prosecutor, and there is no clear evidence to acknowledge this differently.

C. Judgment of the court below

(1) First, the facts of this case recorded in the record are as follows.

① In March 1995, the Defendant was determined as a person subject to first-class enlistment and was notified of enlistment on February 6, 1996, but the date of enlistment was postponed on five occasions on the grounds of college research, and was postponed on September 26, 2005 on five occasions until January 17, 2005, and was transferred to replacement service on September 26, 2005 (execution of 10 months imprisonment with labor declared on March 28, 2005, all the facts of the prosecution) and was postponed on two more occasions until May 11, 2006 (when the date of enlistment was postponed on May 11, 2006, the Defendant used the method of identifying the qualifying examination through the Internet site, etc. to postpone the date of enlistment).

② On the other hand, on December 20, 2005, the Defendant was sentenced to a fine of seven million won (50,000 won per day of confinement for exchange) for fraud at the Busan District Court on December 20, 2005, and the above judgment became final and conclusive on May 7, 2006, and the Defendant did not pay the above fine, and the Busan District Prosecutors' Office urged the Defendant to pay the fine on August 21, 2006.

③ Finally, on July 12, 2006, the Defendant notified the instant public interest service personnel call at the time of the imposition of the duty to serve in the military: The public interest service personnel call at the time of call: August 24, 2006; the convening unit at the Army Training Center; however, around 12:00 on August 24, 2006, the date of call at the Daejeon District Public Prosecutor’s Office, expressed his intention to be subject to the disposition of detention in the workplace by disclosing the fact of the failure to pay a fine and the ability to pay a fine. At that time, Nonindicted 1, who is the Defendant’s birth, notified the Busan Regional Military Manpower Office that the Defendant would be subject to the disposition of detention in the workplace, making it impossible to enlist on the same day

④ On January 1, 2007, Nonindicted 2, an employee of the Busan alternative military manpower team, who was in contact with the above above, requested the Daejeon District Prosecutors’ Office to postpone the execution of fines and undergo training for the Defendant to enter the field training center on the grounds that there is a concern for the Defendant to be exempted from the call of public duty personnel service personnel due to age excess. Nonindicted 3, upon receipt of such a request, explained the same purport to the Defendant and recommended him to receive a fine after being admitted to the field training center. On the other hand, Nonindicted 3, upon receipt of the above request, solicited him to receive a fine and receive a fine after being admitted to the field training center, and the Defendant also expressed his intention to be admitted to the field training center.

⑤ However, at around 19:30 on the same day, the Defendant, who moved to Busan District Public Prosecutor’s Office, declared that he would not have the ability to pay a fine by himself, and that he would be in custody in the Nowon-gu Public Prosecutor’s Office. The prosecutor of Busan District Public Prosecutor’s Office shall immediately direct the Defendant to execute the custody in the Nowon-gu Public Prosecutor’s Office (7 million won, 50,000 won, 1.50,000 won, 140 days, and 1.40 days, from August 24, 2006 to Busan Public Prosecutor’s Office. Accordingly, the Defendant was detained in the Nowon-gu Public Prosecutor’s Office from November 24, 2006 to complete the execution of the custody on January 10, 207, where the trial was pending.

(2) Whether the Defendant had “the purpose of evading the duty of military service”

The following circumstances acknowledged by the above facts have been postponed five times or more before the date of enlistment in the Daejeon District Public Prosecutor's Office. Since the defendant had experience in passing the first judicial examination, etc., in particular, at the time of postponement of the enlistment date on May 11, 2006, he seems to have already been aware of the relevant provisions of the Military Service Act, such as the defendant's examination that could postpone the date of enlistment through the Internet, etc., and the defendant had already been aware of his intention to have been detained in the Daejeon District Public Prosecutor's Office on August 24, 2006, the defendant was recommended to be admitted to the Daejeon District Public Prosecutor's Office to enter the Daejeon Public Prosecutor's Office at the time of enlistment and was given a reply to the effect that he would again go to the Busan District Public Prosecutor's Office at the time of enlistment, and the defendant had already been released from the Daejeon Public Prosecutor's office at the time of enlistment and had already been released from the time of enlistment in Busan Public Prosecutor's office and had already been released from the Daejeon Public Prosecutor's Office.

(3) Whether the act constitutes escape

The phrase “the network” under Article 86 of the Military Service Act refers to the act of evading or evading the performance of the duty of military service or causing the state of reduction or exemption. Therefore, it is examined whether the defendant’s act constitutes escape under the above Act.

In this case, although the defendant was detained in the workhouse by the state agency as part of the execution of the State's penal authority according to the criminal judgment, and the defendant was unable to enlist on the date of enlistment, as seen earlier, the defendant tried to find out Busan District Prosecutors' Office with the intention of using his finalized criminal records and having knowledge of the fact that the defendant was in the duty of military service for the purpose of evading the duty of military service. If the execution of punishment was commenced prior to the enlistment of the defendant, regardless of the defendant's will, the defendant had a record of crime committed against the defendant's will, it would result in a conflict between the state agency's punishment execution and the duty of military service by inducing the defendant to exercise his duty of military service without knowing the situation that the defendant was in the duty of military service. If the defendant was entrusted to the defendant's body without the administrative capacity of the enlistment agency and the defendant did not perform his duty of military service, it would result in evasion of or exemption from the duty of military service, and thus, it would be reasonable to say that the defendant's act of attracting the defendant's punishment will would have first priority over the execution of the State's duty of military service.

(4) Whether Article 20 of the Criminal Act is a legitimate act

The defendant asserts that his act is in accordance with the provisions of the Criminal Act and the Criminal Procedure Act, which provide for the execution of punishment due to the default of fine, and that the illegality is excluded as a justifiable act by the act under the law. Accordingly, in this case, the defendant in this case, with the knowledge that he could be exempted from military service by being subject to a disposition of detention in prison, the defendant used staff of Busan District Public Prosecutor's Office who did not know that he could be exempted from military service by being subject to the disposition of detention in prison. This part of the defendant's assertion is without merit, since it

(5) Whether it falls under Article 16 of the Criminal Act

Since the defendant asserts that his act does not constitute a crime under Article 16 of the Criminal Act, Article 16 of the Criminal Act provides that an act of misunderstanding that his act constitutes a crime by law shall not be punishable only when there are justifiable grounds for misunderstanding. In general, although a crime is committed, it is generally recognized that his act constitutes a crime but it does not constitute a crime by law in his special circumstances, it shall not be punishable if there are justifiable grounds for misunderstanding. As seen earlier, the defendant should have fulfilled his military service unless there are special circumstances such as voluntary execution of punishment by government agencies first, and the defendant comes to the crime in this case by using his staff at Busan District Prosecutors' Office who did not know about the defendant's military service with a view to evading military service with a certain degree of provisions regarding military service. In light of the above, although the process of execution of punishment by state agencies is involved, the defendant cannot be said to have committed any mistake that his act does not constitute a crime, and even if the defendant committed domestic affairs does not constitute a crime, he cannot be viewed as having justifiable grounds for misunderstanding.

(6) Sub-committee

Therefore, the judgment of the court below which acquitted the defendant is erroneous by misunderstanding of facts or misunderstanding of legal principles, which affected the conclusion of the judgment, and the prosecutor's appeal including this purport is justified.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The facts constituting the crime recognized by this court are as described in the above 2. A.

1. Partial statement of the defendant;

1. Some of the defendant examination records prepared by the public prosecutor;

1. A written accusation;

1. A written statement;

1. Each report on investigation;

1. Criminal records;

1. Article applicable to criminal facts;

Article 86 of the Military Service Act

2. Aggravation for repeated crimes;

Article 35 of the Criminal Act

3. Inclusion of days of pre-trial detention;

Article 57 of the Criminal Act

Judges Don-man (Presiding Judge) Don-man Correction