Defendant 1 and 1

Defendants

Kim Yong-use

Law Firm, Pacific, Attorneys Kim Yong-hwan et al.

Seoul Eastern District Court Decision 2007Ma1562 Decided May 14, 2008

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles (as to the violation of the Military Service Act due to incorporation-related misconduct)

Nonindicted 1 was in a state of sufficient qualification to be incorporated into the technical research institute affiliated with Defendant Company, and was actually engaged in affairs related to the civil engineering structure after incorporation. Therefore, Defendant 1’s act of applying Nonindicted 1 to transfer Nonindicted 1 to the technical research personnel of Defendant Company cannot be deemed to constitute “unfair act related to incorporation” as prescribed by Article 92(2) of the Military Service Act. Nevertheless, the lower court convicting the Defendants of the facts or misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendants (defendant 1: 2 years of suspended sentence in June, 5 million won in fine, and fine of five million won in case of the defendant company) is too unreasonable.

2. Judgment of party members

A. As to the assertion of mistake of facts and misapprehension of legal principles

(1) The head of the competent regional military manpower office may transfer a person who is engaged in a research institute selected as a designated entity from among the persons to be enlisted in active service or a person to be enlisted in active service or a person to be enlisted in public duty personnel service and who can complete the mandatory service period by the time he reaches the age of 35 (Article 36(5) and Article 38 subparag. 1 of the Military Service Act), to technical research personnel service (Article 36(5) and Article 38 subparag. 1 of the same Act), and a person who wishes to be enlisted in technical research personnel service shall submit an application for enlistment to the head of the designated entity along with the documents specified by Ordinance of the Ministry of National Defense, to

Therefore, an employer, the head of a designated entity, is responsible for the transfer of expert research personnel service, after confirming whether the person in question is performing his duties with the degree prescribed by the law and recommended by the head of the competent regional office of manpower administration. Thus, if the person in question is recommended to be transferred to the expert research personnel upon recommendation of the person in question, the employer will be deemed to have committed an unlawful act in relation to

According to the evidence duly adopted and examined by the court below and the witness non-indicted 1 and 2's legal statements, the court below requested that the non-indicted 1, who prepared for the administrative notice, be included in the technical research institute of the defendant company as a technical research personnel at ordinary times on February 2006 when requesting that the non-indicted 1, who was aware of the administrative notice, be included in the technical research institute of the defendant company as a member of the technical research institute of the defendant company. The defendant 1 consented that the non-indicted 1 should be included in the first administrative notice, while the second examination is eight months, so that the second examination can be carried out as a member of the technical research institute of the defendant company. The facts that the non-indicted 1 did not carry out research in the field of civil engineering structure at the technical research institute of the defendant company, and that the non-indicted 1 could not be included in the ordinary research task at least by August 200, the non-indicted 1, who was found to be a member of the technical research institute of the defendant company.

According to the above facts of recognition, Defendant 1, an employer, when preparing an application for transfer to expert research personnel service for Nonindicted 1, even though Nonindicted 1 was well aware of the fact that he did not perform his duties while serving in the Defendant company, and, despite being well aware, he had Nonindicted 1 transferred to expert research personnel service upon recommendation of the Seoul director general of the Seoul regional military manpower office as expert research personnel. Thus, Defendant 1 was deemed to have committed the “unfair act regarding transfer” under Article 92(2) of the Military Service Act, and therefore, there is no error of law by mistake of facts or misapprehension

B. As to the assertion of unfair sentencing

Examining the conditions of sentencing prescribed in Article 51 of the Criminal Act, such as the content and circumstances of the instant crime, relationship with professional skilled personnel, and circumstances after the instant crime, the sentence imposed by the lower court against the Defendants is deemed appropriate.

3. Conclusion

Therefore, since the defendants' appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Shin Tae-ro (Presiding Judge)