[1] The meaning of "defensive act" under Article 86 of the former Military Service Act, and the time when the act commences and its crime is established, whether it requires the occurrence of a result of evading or exempting military service duty (negative)

[2] In a case where a designated entity under the former Military Service Act prepares and submits a false application for enlistment with intent to evade military service or to reduce or exempt military service while having no intent to serve as expert research personnel, whether the crime of violating Article 86 of the former Military Service Act is established (affirmative), and whether the act of deceiving the director of the competent regional military manpower office in order to prevent cancellation of assignment after receiving the approval of enlistment is separately constituted a fraudulent act

[3] In a case where a designated entity under the former Military Service Act did not intend to serve as expert research personnel and obtained approval from the competent authority by filing an application for transfer or dispatch as false contents, whether the crime of obstruction of performance of official duties by fraudulent means is established (affirmative)

[1] The term "act of misconduct" under Article 86 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005) refers to an act of attempting to reduce or exempt the duty of military service by deceiving the military administrative authority even though it does not fall under the conditions for reduction or exemption of the duty of military service, or even if it does not fall under such physical condition, and thus, it shall be deemed that the act of fraud was performed only when it has reached the stage of having direct risk of evading the performance of the duty of military service and infringing the appropriateness of the military administration, to the extent that it corresponds to the escape, diving, or damage to the body. Meanwhile, the crime is established by the execution of a fraudulent act, and further, the occurrence of the result of the evasion or exemption of the duty of military service is not required.

[2] Even if a designated entity under the former Military Service Act (amended by Act No. 7541 of May 31, 2005) is to be transferred to expert research personnel or skilled industrial personnel, where the head of the pertinent designated entity conspireds with the head of the pertinent designated entity for the purpose of evading or evading the duty of military service without any intent to serve in the pertinent designated entity and submits a false application for enlistment to the competent director of the competent regional military manpower office, by submitting such application for enlistment, and thereby establishing a crime of violation of Article 86 of the Military Service Act is established. As long as the transfer to expert research personnel or skilled industrial personnel is approved by the head of the competent regional military manpower office through such fraudulent act, even if the act belongs to the competent director of the regional military manpower office in order to prevent the cancellation of the transfer

[3] Under the former Military Service Act (amended by Act No. 7541 of May 31, 2005), if a designated entity did not intend to serve as expert research personnel and submitted a false application for enlistment into expert research personnel service, and obtained approval from the competent authority by submitting a false joint research agreement to the director of the competent regional military manpower office, such enlistment into the military service and approval for secondment is not the reason for insufficient examination by the competent authority, but the applicant’s fraudulent act is the reason for fraudulent action, and thus, the crime of obstruction of performance of official duties by deceptive means is established.

[1] Article 86 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005) / [2] Articles 36, 37, 38, and 86 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005) / [3] Article 137 of the Criminal Act

[1] Supreme Court Decision 2003Do8247 decided Mar. 25, 2004 (Gong2004Sang, 744) Supreme Court Decision 2005Do3065 decided Sep. 28, 2005 (Gong2005Ha, 1729)

Defendant 1 and two others

Prosecutor

Seoul Eastern District Court Decision 2007No953 Decided January 10, 2008

The non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the Seoul Eastern District Court Panel Division. The prosecutor's remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on acquittal

Article 86 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005; hereinafter “Military Service Act”) provides that “Any person who deserts, absconds, or injures his body or commits a deceitful act with the intention of evading military service or having military service reduced or exempted shall be punished by imprisonment with prison labor for not less than one year but not more than three years.” Here, the term “defensive act” refers to an act of deceiving the authorities of the military service to have the military service reduced or exempted, or attempted to have the military service reduced or exempted, notwithstanding that such act does not fall under the conditions of reduction or exemption or such physical condition, such act constitutes a crime committed by a designated entity with the intention of evading the performance of the military service and impairing the propriety of the military service. Therefore, it is not deemed that such act was performed only when it entered the stage of having direct risk of evading the performance of the military service as well as infringing the appropriateness of the military service, and thus, it is not established by the competent director of the regional military manpower office having jurisdiction over the aforementioned act.

According to the records, with a view to evading Defendant 2’s duty of military service, the prosecutor may establish and submit a false application for enlistment of the above Defendant into technical research personnel service at the Korea Dog Camp, a designated entity (hereinafter “Korea Dog Camp”) as if the above Defendant did not wish to work in a normal manner, and obtain approval from the director of the Seoul regional military manpower office on May 4, 2004; return money received from the above Korea Dog Camp as wages from the above Korea Dog Camp; and prepare and submit a false agreement as if the above Defendant’s university jointly studies on October 21, 2004, and submit a false agreement to the Seoul regional military manpower office on the ground that the act of obtaining approval for dispatch from the Seoul regional military manpower office on October 21, 2004 constitutes “private act” under Article 86 of the Military Service Act

The court below held that the defendants' act of preparing and submitting an application for transfer to expert research personnel service with the above false content completed a fraudulent act, and that the remaining acts after receiving the approval of transfer from the director general of the Seoul regional military manpower office do not constitute a separate crime after the completion of the crime. In light of the above legal principles and records, the court below acquitted the above facts charged on the ground that the statute of limitations has expired. In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the establishment of a fraudulent act under Article 8

2. As to the ground of appeal on the acquittal portion

In granting authorization or permission in accordance with an application, an administrative agency shall examine and decide on whether to grant authorization or permission on the premise that the grounds for the application are inconsistent with the facts. Thus, if an administrative agency approves or permits the applicant's belief that the grounds for the application for permission or false explanatory materials submitted by the applicant are light without sufficiently verifying the facts, this would result in insufficient examination by the administrative agency, and thus, does not constitute a crime of obstruction of performance of official duties by fraudulent means. However, if the applicant asserts false grounds for the application to the administrative agency and submits false explanatory materials in accordance with the relevant Acts and subordinate statutes, the permitting agency has sufficiently examined the existence of the requirements for authorization or permission as prescribed by the relevant Acts and subordinate statutes, but failed to discover that the grounds for the application and explanatory materials are false, and thus, it constitutes a crime of obstruction of official duties by fraudulent means (see, e.g., Supreme Court Decision 200Do264, Sept. 24, 202).

However, when the head of the competent regional office of manpower administration determines the person to be enlisted in active service as expert research personnel and submit the recommendation to the head of the competent regional office of manpower administration (Article 36(5) of the Military Service Act, Article 78 of the Enforcement Decree of the Military Service Act), and the head of the designated entity bears the duty to notify the head of the competent regional office of manpower administration when certain reasons arise, such as retirement or assignment of expert research personnel to the designated entity at the time of such enlistment (Article 40 of the Military Service Act and Article 91 of the Enforcement Decree of the Military Service Act), and other Acts and subordinate statutes related to military service imposes the duty of management and supervision of the transfer of expert research personnel, service, changes in status, etc. on the part of the designated entity, taking into account the characteristics of expert research personnel working in private enterprises

In light of the above legal principles and the legislative purport of the military service-related Acts and subordinate statutes, in a case where a designated entity under the Military Service Act did not intend to serve as expert research personnel, and submitted an application for enlistment into expert research personnel with the head of the pertinent designated entity in collusion with the head of the pertinent designated entity and submitted a false application for enlistment into expert research personnel, and obtained approval for secondment from the competent authority by filing a request for secondment by means of preparing and submitting false documents in order to avoid the fact-finding survey by the competent authority, the approval for enlistment into the dispatch and dispatch is not the cause of the competent authority’s insufficient examination, but rather the cause of

Nevertheless, the court below held that even if the defendants filed a false joint research agreement with the director of the competent regional military manpower office for dispatch and approved the dispatch, the court below determined that the director of the competent regional military manpower office approved the rest of the beliefing that it is true without sufficiently investigating the facts, and sentenced not guilty of the obstruction of performance of official duties by fraudulent means. This part of the court below erred in the misapprehension of the legal principles as to the obstruction of performance of official duties by fraudulent means or by misapprehending the law of evidence, which affected the conclusion of the judgment (the records show that the prosecutor was indicted not only of the above application for the dispatch approval but also of the application for the transfer of expert research personnel as a crime of obstruction of official duties by fraudulent means (the court below erred in omitting the judgment).

3. Conclusion

Therefore, the non-guilty part of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the prosecutor's remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)