Defendant 1 and two others

Defendants and Prosecutor

Park Ho-sung

Law Firm Barun, Attorneys Park Jung-soo et al.

Seoul Eastern District Court Decision 2007Ra1142 Decided August 30, 2007

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for one year and fine of 3,00,000 won, by imprisonment for six months, and by fine of 5,00,000 won for Defendant 3 stock companies, respectively.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

The forty-seven days of detention before the pronouncement of the judgment below shall be included in the above imprisonment for Defendant 1.

However, for two years from the date this judgment became final and conclusive, the execution of the above sentence against Defendant 1 and the above sentence against Defendant 2 shall be suspended.

Defendant 1 shall be ordered to pay the amount equivalent to the above fine.

The charge of violating the Military Service Act due to the illegal act related to the incorporation of Defendant 1 and Defendant 3 into Nonindicted 7 is acquitted.

1. Summary of grounds for appeal;

A. Grounds for appeal by the Defendants

(1) As to the violation of the Military Service Act by Defendant 1 and 2’s fraudulent act for the purpose of evading military service

(A) Violation of the legal principle

1) Article 86 of the Military Service Act provides that if a person liable for military service, who was accused by the person liable for military service, acts as a person liable for military service, and the person responsible for military administration, takes a disposition based on such act, it is impossible to allow the person liable for military service who committed a fraudulent act to perform the duty of military service in law or in fact even if the person other than the person liable for military service or the third person is not added to the other acts. Thus, Defendant 1’s application and a written pledge submitted to the Military Manpower Administration by the person liable for military service, are prepared and submitted in accordance with the past custom, and is not a false application and a written pledge, and thus, the submission of such application and a written pledge does not constitute “private act”. Further, the submission of a written transfer cannot be deemed as the result of “private act.” Moreover, it cannot be deemed that Defendant 2’s preparation and submission of a false written application for transfer, a written pledge, and Defendant 2’s non-service act as a skilled industrial personnel, and thus, it cannot be deemed as a single fraudulent act.

2) Defendant 2 was transferred to industrial technical personnel who are subject to enlistment in the public interest service and cannot be deemed to be light in performing the duty of military service, and thus, it cannot be said that there had been a purpose of evading or exempting the duty

3) The term “defensive act” under the Military Service Act means that the person liable for military service was expected to be himself and constitutes a person liable for military service, and thus, a person who is not liable for military service cannot be a principal offender. The court below erred in punishing Defendant 1, who is not a person liable for military service, as a co-principal.

(B) Points of mistake of facts

Defendant 2, regardless of Defendant 1, was incorporated into Nonindicted 1, who was the representative director, upon the request of Nonindicted 1. Defendant 2 and Defendant 1 did not have any intent to jointly process the instant “act of deception.” Since Defendant 2 had faithfully engaged in the field concerned after the incorporation, Defendant 2 did not intend to commit a deceitful act for the purpose of evading military service.

(2) As to violation of the Military Service Act due to breach of duty to engage in duty, and violation of the Act due to nonperformance of personal notification

(A) Violation of the legal principle

The term "employer", which has a skilled industrial personnel engaged in the designated duty under the Military Service Act or is obligated to notify changes in status, refers to the head of a public or private enterprise or public or private organization to which the Labor Standards Act applies, and Defendant 1 is not the representative director of Defendant 3 corporation, and thus is not the "employer".

(B) Points of mistake of facts

Defendant 3 was operated by Nonindicted Co. 5 and Nonindicted 1, and Defendant 1 did not participate in the operation of the above Defendant 3 Co., Ltd.; Defendant 1 did not commission Nonindicted Co. 1, a representative director, and Nonindicted 4,6, and 7 assigned as industrial technical personnel, nor conspired to perform the duty to notify changes in status, and Nonindicted Co. 4, 6, and 7, the aforementioned incorporated Nonindicted Co. 1, engaged in the designated work faithfully, so the liability for violation of the Military Service Act due to Defendant 1’s breach of duty to engage in the duty to notify changes in status, and the liability for violation of the Military Service Act due to Defendant 1’s breach of duty to engage in the duty to notify changes in status, cannot be established (Defendant 1 asserted that Defendant 2’s violation of the Military Service Act due to illegal acts related to Nonindicted Co. 6’s transfer to Nonindicted Co. 2 at the time of original adjudication, but the lower court did not recognize the aforementioned act as guilty, and thus, it cannot be accepted).

(b) Grounds for appeal by prosecutors;

(1) The part on violation of the Military Service Act due to Nonindicted 7’s misconduct in relation to the incorporation

Comprehensively taking account of each statement made by Nonindicted 1, 2, and 5 in the investigative agency, even though it can be recognized that Defendant 1 was aware of Nonindicted 7’s illegal incorporation in advance and conspired with Nonindicted 1, etc. to commit a crime, the lower court, which did not recognize it, committed an illegal act that misleads the facts.

(2) The part related to Defendant 2 in violation of the Military Service Act

The judgment of the court below that the offense of violating the Military Service Act due to fraudulent acts related to the purpose of evading military service and the offense of violating the Military Service Act due to the violation of the duty to serve in the military, the offense of violating the duty to serve in the military due to breach of duty, and the offense of violating the duty to notify personal information is different from the protected legal interests of the subject of the crime, the form of the act, and the protected legal interests. Thus, the judgment below that the offense of violating the duty to serve in the military due to the breach of duty did not constitute separate

(3) Unreasonable sentencing

The sentence of the lower court (Defendant 1: 1 year of imprisonment, 2 years of suspended sentence, 3,00,000 won of fine, 2 years of suspended sentence, 3,000 won of imprisonment, 6 months of suspended sentence, 2 years of suspended sentence, and 3 years of fine: Defendant Company: 5,00,000 won of fine) is too uneased and unreasonable.

2. Determination

A. Judgment on the violation of the Military Service Act due to a fraudulent act committed for the purpose of evading military service

(1) Summary of this part of the facts charged and the judgment of the court below

Defendant 1 and 2 conspired with Defendant 1 and Defendant 2, a U.S. citizen of the Republic of Korea, at the same time when they were released from the Military Manpower Administration on the grounds of their stay in Korea for more than one year on January 2004, and simultaneously were judged to be subject to the fourth level public service call through physical examinations, and Defendant 1’s attempt to evade military service by entering the above Defendant 3 corporation operated by the above Defendant 1 (hereinafter “Defendant 3 corporation”) in a disguised manner with Defendant 1’s assistance. On June 20, 204, Defendant 2 did not enter the above company as the representative director of the above company and did not work for the above company at the time of the above company, and did not enter the above company as the representative director of the regional military manpower office at the time of their stay in Korea, and did not enter the above company’s work for the above company’s normal time and did not enter the above company’s work for the same purpose as the above company’s technical development application form, and found Defendant 1 guilty of the above portion of the Defendant 2’s technical development application form.

(2) Determination of party members

(A) Judgment on the misapprehension of legal principles by Defendant 1 and 2

1) 병역법 제86조 는 병역의무를 기피하거나 감면받을 목적으로 도망하거나 행방을 감춘 때 또는 신체손상이나 사위행위를 한 사람을 처벌하는 규정인바, 병역법상 산업기능요원제도는 군 소요인원의 충원에 지장이 없는 범위 안에서 획일적인 징집으로 인하여 생기는 불합리를 제거하고 병역자원을 효율적으로 활용하여 국가경쟁력을 제고하기 위한 것으로서, 특정 산업에 필요한 유능한 인력을 투입하여 전체적인 국가산업의 육성·발전에 기여하는데 그 목적이 있고, 산업기능요원은 병역의무의 대체복무형태로서, 병역법 제39조 제4항 은 산업기능요원에 대하여 의무종사기간 중 성실히 종사하겠다는 서약서를 제출하도록 하고 있고, 편입 당시 지정업체의 해당분야에만 종사하여야 하며 다른 업무를 겸직하거나 장소적으로 이동하는 것을 금지하고 있는 점 등에 비추어 보면, 병역특례 지정업체에 산업기능요원으로 편입된 자가 병역법에서 요구하는 편입자격을 갖추고 있다고 하더라도, 편입 당시 지정업체의 해당분야에 정상적으로 근무할 능력이나 의사가 없음에도 불구하고 해당 지정업체에 편입하여 마치 정상적으로 근무할 것처럼 편입신청서, 서약서를 작성·제출하는 행위는 허위의 편입신청서, 서약서를 통하여 병무청으로부터 편입승인처분을 받아 결과적으로 사실상 병역의무를 면탈하는 것이라 아니할 수 없으므로, 위와 같은 행위는 위 규정에서 말하는 ‘사위행위’에 해당한다고 봄이 상당하다.

Therefore, the act of preparing and submitting a false application for enlistment, etc. as such without a designated entity’s capability or intent to normally work in the field concerned cannot be deemed as an “act of misconduct” (including the assertion that such application for enlistment was made according to customary practice and is not false) or Defendant 1 and 2’s ground of appeal that the purpose of evading or exempting military service cannot be acknowledged in the transfer to industrial technical personnel.

2) In addition, the crime of violating the Military Service Act due to the “act of misconduct” under Article 86 of the Military Service Act shall be deemed as a person who constitutes an “person liable for military service” as a constituent element. However, even if a person is not liable for military service under Article 33 of the Criminal Act but is not a person liable for military service, if there is a combination of intent to jointly process and realize a crime with regard to a crime committed by a person holding such status, it may be punished

The defendant 1 and 2's appeal cannot be accepted against this.

3) However, among this part of the facts charged, Defendant 1 and Defendant 2 conspired to serve as skilled industrial personnel on the part after Defendant 2 was approved to be transferred to the company, i.e., he did not work as a skilled industrial personnel on the part of the facts charged, such as not going to work normally and not engaged in the program development work. Defendant 1 did not notify the director of the competent regional military manpower office having jurisdiction over the designated entity at the time of transfer of the fact that Defendant 1 did not work as a skilled industrial personnel. The act of preparing and submitting a false application for enlistment without the intention to work normally even after the transfer to the designated entity of the special military service as seen above, resulting in de facto evasion of the military service. As such, the timely act of this part of the facts charged after the approval to be transferred to the Military Manpower Administration upon the submission of the application to be transferred to the company and the approval to be transferred to the company, which constitutes an act after Defendant 2 had been approved to be transferred to the company. Thus, this part of the facts charged constitutes a crime. The court below erred by misapprehending the legal principles and thereby finding Defendant 12.

(B) Judgment on the misunderstanding of facts by Defendant 1 and 2

According to the evidence duly adopted and examined by the court below, Defendant 1 was the de facto employer of the above company by Nonindicted 1 and Nonindicted 5, and the decision was made and ordered that Defendant 2 be transferred to industrial technical personnel service. Accordingly, Nonindicted 1, as at the time of original adjudication, prepared a written application for transfer of the work department as “technical personnel”, “program development”, and a written oath that Defendant 2 will be in charge of the above work in the above company’s technical personnel department as at the date of the preparation of the above written application, and submitted it to the Seoul regional military manpower office for approval. However, Defendant 2 did not have the ability to develop the program by graduating, and there was no field of work to develop the program. Defendant 2 did not properly attend the work after being transferred to the industrial personnel service, and Defendant 2 did not have the duty to be transferred to the working personnel at the time of the above industrial personnel service, and Defendant 2 did not have the duty to be transferred to the president after being transferred to the above company, and Defendant 2 did not have the duty to be recognized as Defendant 2’s act.

B. Determination as to the violation of the Military Service Act due to improper acts related to enlistment, violation of the Military Service Act due to breach of duty to engage in labor, and violation of the Personal Changes in the

(1) Ex officio determination

Before examining the grounds for appeal by the Defendants and the Prosecutor, the Prosecutor changed the facts of all the facts charged in this part of the charges to “Defendant 1” in “Defendant 1” from February 19, 2004 to “in collusion with Nonindicted 1 who was in charge of the representative director in the form of Defendant 3 corporation from February 19, 2004,” and applied for amendment of the indictment to add “Article 30 of the Criminal Act” to “Article 30 of the Criminal Act” in the applicable provisions of law. Since this Court permitted this, the judgment of the lower court was no longer maintained.

However, the defendants and the prosecutor's grounds of appeal are still subject to the judgment of party members.

(2) Judgment on the Defendants’ assertion

(A) Judgment on the Defendants’ assertion of misapprehension of the legal principles

Article 84(2) and Article 92(1) of the Military Service Act provide that “employer” shall be deemed to be the subject of a crime of violation of the Military Service Act due to nonperformance of notification on personal change and violation of duty to engage in the Military Service Act. Article 2(1)5 of the Military Service Act provides that “Employer” refers to the head of a public, private, or public, or private organization subject to the Labor Standards Act which employs a person responsible for military service. Unlike the public organization’s legal interest and the legislative purport of the above penal provision that protects the appropriateness of the management of special military service personnel, the public and private enterprises and private organizations are not listed as the representative director, but there are many persons who actually run private, private, and private organizations, and private organizations. Considering that there is a need to effectively regulate the notification on personal change of industrial personnel working by such a person, even if not in the form of representative director, a person who actually runs a company as the subject of a representative director shall be deemed to fall under the “principal representative director of the Military Service Act” as prescribed in the foregoing Act (Article 1).

(B) Judgment on the defendants' assertion of mistake of facts

According to the evidence duly adopted and examined by the court below, Defendant 1 paid to Nonindicted Co. 3 as his own funds and actually managed the above company after acquiring the aforementioned business from Nonindicted Co. 1, who was a company developing and selling the bar code around July 192. However, from August 10, 200 to February 19, 204, Nonindicted Co. 1 was placed as its representative director, and Defendant 1 did not have any record of new sales of the above company's bar code from around 200, and only the maintenance and repair of the bar code reading machines were operated by Nonindicted Co. 3, who was established by Nonindicted Co. 1, who did not have been assigned to the above business by Nonindicted Co. 4, who had been assigned to the above business by Nonindicted Co. 1, a new business of Nonindicted Co. 3, a new business of Defendant Co. 1, a new business of Defendant Co. 1, a new business of Defendant Co. 1, a new business of Defendant Co. 3, who was employed by Nonindicted Co. 1, a new business.

(3) Determination of the Prosecutor’s assertion

(A) Determination as to the violation of the Military Service Act due to Nonindicted 7’s misconduct in relation to the incorporation

1) Summary of this part of the facts charged

Defendant 1, in collusion with Nonindicted 1, in the office of Defendant 3 corporation on May 2005, the fact was that Nonindicted 5’s children, who were subject to industrial technical personnel, were to work in the office of Defendant 3 corporation. The fact was that Nonindicted 7’s children, who were Nonindicted 5’s children, was to work in English without being assigned to a clear position and to work without being assigned to the company, and even though there was no software or program development division inside the above company, Defendant 1 entered “the Technical Department” and “program development” in the work division of the designated entity from among the common matters to be entered in the application form of industrial personnel in the above Nonindicted 7’s name, and the above Nonindicted 7 was to work in the technical department of the above company as of the date of the preparation of the above application, and confirmed the false contents as if he were engaged in the same work in the future, and after obtaining approval from the Seoul regional military manpower office on May 16, 2005, Defendant 3 and Defendant 1’s temporary act committed the above violation.

2) The judgment of the court below

The lower court consistently denied that Defendant 1 was aware of this part of the facts charged and did not have been involved in the transfer from the beginning. Nonindicted 1 or Nonindicted 5 made a statement to the effect that Defendant 1’s assertion was consistent with the part concerning the transfer to Nonindicted 7 by the prosecution without reporting it in advance to Defendant 1, and thus, it is difficult to recognize the facts charged on the grounds that the submission of evidence to the prosecution by the prosecutor is not sufficient to recognize the facts charged.

3) Determination of party members

As seen earlier, Defendant 1 has been determined upon receiving a report on the transfer of the industrial technical personnel of Defendant 3 to the industrial technical personnel service, and there is doubt as to whether the misconduct regarding the transfer of Nonindicted 7 to Nonindicted 7 was determined or conspired by Defendant 1.

However, in a criminal trial, the conviction shall be based on evidence with probative value, which can lead the judge to believe that the facts charged are true beyond a reasonable doubt, and if this degree of conviction cannot be formed, the interest of the defendant should be judged even if the defendant is suspected of guilty. Thus, there is each statement in the investigative agency of Nonindicted 1, 2, and 5 as evidence corresponding to the facts charged in the case. However, Nonindicted 2 made a statement that the defendant 1, etc. receives a report on his business from Nonindicted 1 or 5, and Nonindicted 1, or Nonindicted 5, in charge of actual transfer, made a statement to the effect that he was permitted or instructed to be transferred to other industrial technical personnel through a report by Defendant 1, but it is not sufficient to acknowledge that the defendant 1 was transferred to the industrial personnel service without the permission of Nonindicted 70,000, and that there was no other evidence to acknowledge that the defendant 1 had been transferred to the industrial personnel service, or that there was no other evidence to acknowledge that he had been transferred to the industrial personnel service.

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and the court below is just, and there is no error of misconception of facts as alleged in the grounds for appeal.

(B) Determination as to Defendant 2’s violation of the Military Service Act, violation of the Military Service Act due to breach of duty on duty, and violation of the notification on personal change in personnel affairs

1) Summary of this part of the facts charged

Defendant 1, in collusion with Nonindicted 1, confirmed the false contents in the application for enlistment as a skilled industrial personnel in the name of Defendant 2, submitted the application for enlistment, and received approval for enlistment, and made the above Defendant 2 to September 8, 2006, the service period from July 9, 2004 to September 8, 2006, and had the above Defendant 2 not attend the school, or in English and official language, and did not work as the chief director of the school juristic person from December 3, 2004, and did not notify the director of the competent regional military manpower office of the fact that the above Defendant 2 was not engaged in the area corresponding to the designated enterprise at the time of incorporation, and Defendant 3 did not work as the chief director of the competent regional military manpower office at the time of the incorporation, and Defendant 1, an employer, at the above temporary location, committed the above violation

2) The judgment of the court below

The court below held that the act of fraud under Article 86 of the Military Service Act refers to "a series of acts causing direct harm to the propriety of military service as a general act which does not fall under the conditions of reduction or exemption of the duty of military service or causes physical conditions of reduction or exemption from the duty of military service, such as an act of impairing the network, locked or body, but does not directly affect the execution of the duty of military service." Thus, in this case, the court below found Defendant 1 not guilty of the violation of Article 86 of the Military Service Act due to the violation of Article 86 of the former part of the Military Service Act, since the employer of the special case of military service in collusion with the person subject to exemption from the duty of military service, submitted an application for confirmation of false content as if he would serve as an industrial technical personnel, and submitted an application for enlistment to the military authority for approval of enlistment, without having the person subject to exemption from the duty of military service engaged in the corresponding field of the designated enterprise, or because the person subject to exemption from the duty of military service as an industrial personnel, and the crime of violation of Article 86 of the former Military Service Act.

3) Determination of party members

First of all, the purpose of evading military service following the false enlistment of expert research personnel is terminated upon obtaining approval of enlistment in the military service, and the following acts are not included in the elements of a fraudulent act. Furthermore, it is difficult to view that one act constitutes a violation of the Military Service Act due to a fraudulent act for the purpose of evading military service and a violation of the Military Service Act due to a violation of a duty to serve in the military due to a violation of a duty to serve in the military due to a violation of a duty to notify personal information and a violation of the Military Service Act due to a violation of a duty to serve in the military due to a violation of a duty to serve in the military due to a violation of a duty to serve in the military due to a violation of a duty to serve in the military due to a fraudulent act for the purpose of evading military service as if the act constitutes several crimes in appearance, or if the act constitutes only one crime, it shall be considered that the act constitutes a violation of the duty to serve in the military due process and the legal interest and interest of the person liable for military service (see Supreme Court Decision 2000Do5318).

In addition, in this case, the purpose of the evasion of military service and the illegal enlistment of industrial technical personnel are one act in appearance, but the subject of the elements of the crime is different from each other, so it is reasonable to view that there is an ordinary concurrent relation as a separate crime.

Therefore, the judgment of the court below which acquitted the defendant on this part of the facts charged is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

3. Conclusion

Defendant 1, 2, and prosecutor’s partial misapprehension of the legal principles are with merit, and the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without any need to examine further the prosecutor’s argument on the grounds of an ex officio reversal. The judgment of the court below is reversed, and

From July 192 to July 1992, Defendant 1 managed Defendant 3 Stock Company as the owner and actual management owner or representative director of Defendant 3 Stock Company, and was actually an employer of the above company selected as the designated entity incorporated into the special military service industrial personnel in the field of information processing from the Military Manpower Administration. Defendant 2 was a person liable for military service transferred to supplementary service, and Defendant 3 was appointed as a corporation incorporated for the purpose of program development sales business and bar code reading and development sales business from the Military Manpower Administration and designated as a designated entity from around 195.

1. Defendant 1 or 2 conspired,

Defendant 2, who is a U.S. citizen, revoked the permission for overseas travel from the Military Manpower Administration for the reason of his stay in Korea for more than one year on January 2004, and was subject to the disposition of prohibition of overseas travel from the Military Manpower Administration at the same time through physical examinations, and was judged as being subject to class 4 public service duty call around January 2004, Defendant 1, who was put to the above Defendant 1’s help, would be exempted from military service in a manner of disguised incorporation into Defendant 3

around June 20, 2004, Defendant 2 was in charge of the development of the program at the above company's technical department as of the date of the above application, and Defendant 2 was in charge of the development of the program in the above company as of July 2, 2004, and Defendant 2 did not intend to normally designate the company as the children of Defendant 1, the representative director of the above company, and even if employed in the above company, he did not intend to work. Defendant 1 entered Nonindicted 1, the representative director of the above company, in the form of the above company, as "technical department" and "program development" in the work division of the designated entity from among the common matters to be entered in the application form of industrial technical personnel in the above company's name, and prepared a false application for transfer and a written oath to the Seoul regional military manpower office around July 2, 200 of the following year, and Defendant 2 was to evade the approval of military service after obtaining approval of July 9 of the same year.

2. Defendant 1 in collusion with Nonindicted 1 who was in charge of the representative director in the form of Defendant 3 corporation from February 19, 2004;

A. On December 2003, Nonindicted 5, the representative director of Nonindicted 8 Co. 5 established by the Defendant, requested that Nonindicted 6, who was the son’s children, be transferred to industrial technical personnel service, and the fact was not established inside Defendant 3 Co. 3, but the software development department was denied, such as preparing and submitting a false application for incorporation as if Nonindicted 6 was in charge of the software development business, which is designated in the above company’s development department, and is engaged in the same business in the future;

The above non-indicted 6 (person in supplemental service) who was unlawfully incorporated from January 5, 2004 to March 4, 2006, the expiration date of service, without having the above non-indicted 6 (person in supplemental service), work in English books, etc., and not having the designated entity engage in the field concerned, and without having the director of the competent regional military manpower office inform the fact that he did not work in the field concerned at

B. On February 26, 2004, Nonindicted 9, a director of the above Nonindicted 8 Company, transferred Nonindicted 4, who was transferred to Defendant 3 Co., Ltd., on December 26, 2004, to the Switzerland Engineering that had been working as representative director from October 2003 (from February 7, 2004 to work as representative director again), and had Nonindicted 4, a director of the above Nonindicted 8 Company transferred to Defendant 3.

From February 26, 2004 to October 15, 2006, when the service expires, Nonindicted 4 (person on active duty) who had been transferred from around October 26, 2006, had the above-mentioned Nonindicted 4 (person on active duty) be in English books, etc. and did not engage in the program development work in the field of the designated enterprise, but did not notify the director of the competent regional military manpower office of the fact that he did not engage

C. (1) At the same time and time as above 1. Paragraph (1) above, the above Defendant 2’s application for enlistment as a skilled industrial personnel was confirmed with false facts and submitted, and the application for enlistment was approved by the employer, and the employer committed an unlawful act in relation to the enlistment;

(2) From July 9, 2004 to September 8, 2006, Defendant 2 did not attend the company or had the above Defendant 2 attend the English official book, and from December 3, 2004, Defendant 2 did not engage in the corresponding field of the pertinent designated entity, and did not notify the director of the competent regional office of manpower administration of the fact that he did not work in the corresponding field of the designated entity at the time of its incorporation.

D. The facts revealed that the above non-indicted 5's son, who is a skilled industrial personnel, submitted an application for enlistment to the Seoul regional military manpower office around May 16, 2005 and the defendant was transferred to the defendant 3 corporation with his employer upon approval of enlistment on the 18th day of the same month;

From May 205 to the date of entry, Nonindicted 7 had the above Nonindicted 7 attend the company and work in English, etc., and did not have the above Nonindicted 7 work in the field concerned with the designated entity, but did not notify the fact that he did not work in the field concerned with the designated entity at the time of its incorporation to the competent director of the regional military manpower

3. Defendant 3 Company:

The above defendant 1, an employer of the defendant, committed the above-mentioned violation at the location of each of the above 2.

1. Each legal statement of the defendant 1 and 2 in part;

1. Protocol concerning the interrogation of the Defendants by the prosecution

1. Each prosecutor’s statement concerning Nonindicted 4, 6, 5, and 1

1. Each statement;

1. Each investigation report and accompanying documents;

1. Article applicable to criminal facts;

A. Defendant 1

(1) Violation of the Military Service Act due to a fraudulent act: Article 86 of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004); Article 30 of the Criminal Act

(2) Violation of the Military Service Act due to breach of duty by each employee: Articles 92(1) and 39(3) of the Military Service Act, and Article 30 of the Criminal Act

(3) Violation of the Military Service Act due to failure to comply with each notification on personal change: Articles 84(2) and 40 of the Military Service Act, and Article 30 of the Criminal Act

(4) Violation of the Military Service Act due to a misconduct related to the incorporation: Articles 92(2) and 36 of the Military Service Act, and Article 30 of the Criminal Act

B. Defendant 2

Article 86 of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004), Article 30 of the Criminal Act

C. Defendant 3 corporation

(1) Violation of the Military Service Act due to breach of duty by each employee: Articles 96, 92(1), 39(3), and 30 of the Criminal Act

(2) Violation of the Military Service Act due to the failure to comply with each notification of personal changes: Articles 96, 84(2), 40, and 30 of the Criminal Act;

(3) Violation of the Military Service Act due to a misconduct related to the incorporation: Articles 96, 92(2), and 36 of the Military Service Act, and Article 30 of the Criminal Act

1. Commercial competition;

Defendant 1: Articles 40 and 50 of the Criminal Act (the crimes of violating the Military Service Act due to any deceitful act, the crimes of violating the Military Service Act due to any unlawful act related to the incorporation, and the punishment imposed on the crimes of violating the Military Service Act due to any more severe fraudulent act)

1. Selection of punishment;

Selection of imprisonment with labor for a violation of the Military Service Act due to default on any personal change;

1. Aggravation for concurrent crimes;

A. Defendant 1: The former part of Article 37, Articles 38(1)2 and 38(1)3, and Article 50 of the Criminal Act (Concurrent Imposition of a fine for the penalty for violation of the Military Service Act due to a violation of the said Act and a violation of the said Act due to a violation of each notification of personal change)

B. Defendant 3 Stock Company: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (in respect of violation of the Military Service Act due to a failure to notify a personal change, and a violation of the Military Service Act due to a violation of a duty to engage in a duty to engage in a duty to engage in a duty to engage in a duty to engage in a duty to engage in a duty to engage in a duty, penalty

1. Discretionary mitigation;

Defendant 2: Article 53 of the Criminal Act and Article 55(1)3(3) of the Criminal Act

1. Detention in a workhouse;

Defendant 1: Articles 70 and 69(2) of the Act

1. Inclusion of days of detention in detention;

Defendant 1: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 1 and 2: Article 62(1) of the Criminal Act ( Taking into account factors of sentencing favorable to the following)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of Defendant 1 and Defendant 3’s violation of the Military Service Act due to Nonindicted 7’s wrongful act related to the enlistment in Nonindicted Company 7 is as stated in the above 2.b.(3)(A)(1), and this constitutes a case where there is no proof of a crime as seen in the above 2.b.(3)(a)(3)(a) and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Of the facts charged against Defendant 1 and 2, the summary of the part concerning the fraudulent act after July 10, 2004 among the facts charged as to the violation of the Military Service Act due to the fraudulent act for the purpose of evading military service is the same as the part of the above 2. A. (1) of the above 2.A. (1) that "shall not work as a skilled industrial personnel because he does not work normally as a company and does not work as a program development work." This constitutes a case that does not constitute a crime as described in the above 2. A. (2) (a. (3). Thus, the defendant shall be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act, but as long as the defendant is found guilty of the violation of the Military Service Act due to the fraudulent act for the purpose of evading military service before July 9, 2004

Defendant 1, on the ground that Defendant 2, who was aware of the operation of the special military service-designated entity, was transferred to industrial technical personnel service and engaged in fraudulent conduct with the aim of evading military service, and committed other unlawful acts related to transfer to the said entity and did not engage in the designated work. Defendant 2 committed the instant crime of evading military service by committing such fraudulent act as above, and Defendant 2 committed the instant crime of evading military service. In addition, strict punishment is required in that such crime is a crime that may have a significant impact on the inside of the Republic of Korea by promoting a high sense of evasion of military service.

However, Defendant 1 and Defendant 2 did not have any particular criminal record, Defendant 1 received surgery due to the age of 67 years, etc. Defendant 2 was transferred to industrial technical personnel even though he could not perform his duty of military service as a U.S. citizen, and thereby prevented the instant crime. Furthermore, Defendant 2 should be transferred to industrial personnel and should serve as public interest service personnel for more than two years as a result of the occurrence of the crime, and the circumstances leading up to the commission of the crime, the details and result of the crime, the circumstances following the crime, the Defendants’ age, character and conduct, and the environment, etc. shall be determined by the same sentence as the order.

Judges Lee Jae-jin (Presiding Judge)