[1] In a case where there is a final and conclusive judgment on the crime of evading service as a public duty personnel under Article 89-2 subparagraph 1 of the former Military Service Act, and on the part of the act of evading service, whether a series of acts of evading service are separated before and after such a final and conclusive judgment (affirmative)

[2] In a case where the Defendant, a public duty personnel, was indicted for violating the former Military Service Act, and a final judgment on the same kind of crime was rendered in the middle of the act of escaping from service, the case affirming the judgment of the court below which acquitted the part of the above facts charged prior to the final judgment and acquitted the remainder of the facts charged on the ground that the remaining facts charged constitute a crime

[1] A crime under Article 89-2 subparagraph 1 of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009) constitutes a single crime for at least 8 days in total continuously or intermittently committed without justifiable grounds, and where there is a final and conclusive judgment on a crime of the same kind in the middle of the act of the renunciation of service for at least 8 days consecutively or intermittently committed, a series of acts of the renunciation of service shall be separated before and after the final and conclusive judgment.

[2] In a case where the defendant, who is a public interest service personnel, was indicted for a violation of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009) and was convicted of having the same kind of crime on May 16, 2009, for three days from January 13, 2009 to January 15, 2009, for three days from September 17, 2009 to September 21, 2009, for two days from September 23, 2009, and for eight days from September 24, 2009 without a justifiable reason, the case affirming the judgment below that found him not guilty for five days in total on the grounds that the part of the charges committed before the final judgment constitutes a violation of the former Military Service Act and a crime that was committed for three days from September 16, 2009.

[1] Article 89-2 subparagraph 1 of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009) / [2] Article 89-2 subparagraph 1 of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009), Article 325 and Article 326 subparagraph 1 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do2744 delivered on March 10, 200 (Gong2000Sang, 995) Supreme Court Decision 2005Do7032 Delivered on March 29, 2007 (Gong2007Sang, 634)

Defendant

Prosecutor

Suwon District Court Decision 2010No1832 decided July 1, 2010

The appeal is dismissed.

The grounds of appeal are examined.

Article 89-2 subparagraph 1 of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009) provides that "public interest service personnel shall be punished by imprisonment with prison labor for not more than three years, for a total period of not less than eight days, or a person who deserts from their service or fails to perform his duty in the pertinent field without justifiable grounds." The above crime constitutes one crime of a total of not less than eight days of non-performance of service continuously or intermittently conducted without justifiable grounds (see Supreme Court Decision 2005Do7032 of Mar. 29, 2007). Where a final judgment has been rendered on the same kind of crime of non-performance of service for not less than eight days consecutively or intermittently conducted, a series of deprivation of service by such final judgment shall be separated before and after such final judgment.

The summary of the facts charged in the instant case is as follows: “The Defendant was serving as public interest service personnel at the ○○ City Lifelong Learning Department. The Defendant was absent from office for three days from January 13, 2009 to January 15, 2009; three days from September 17, 2009 to September 21, 2009; and two days from September 23, 2009 to September 24, 2009 without any justifiable reason for absence from office without any public interest service personnel for a total period of eight days or more.”

According to the reasoning of the judgment below, the defendant was sentenced to a suspended sentence of two years for the six-month period from May 8, 2009 to December 12, 2008, and the judgment became final and conclusive as of May 16, 2009, on the ground that "from December 9, 2008 to December 12, 208; from December 15, 2008 to December 18, 2008, the defendant retired from his service as a public duty personnel without justifiable grounds for a total of eight days, including four days."

In light of the aforementioned facts in light of the legal principles as seen earlier, the crime of violation of the former Military Service Act, for which the judgment became final and conclusive, is deemed to constitute a crime identical to the facts charged in this case. As such, the part of the facts charged in this case that the Defendant retired from service for three days from January 13, 2009 to January 15, 209, which was final and conclusive, constitutes a crime committed before the judgment on the violation of the former Military Service Act became final and conclusive, and constitutes a separate crime, and the remainder of the facts charged in this case constitutes a separate crime.

Therefore, among the facts charged in the instant case, the crime of evading from service for three days from January 13, 2009 to January 15, 2009 falls under the time when a final judgment has been rendered, and thus, a judgment of acquittal shall be rendered pursuant to Article 326 subparagraph 1 of the Criminal Procedure Act. Of the facts charged in the instant case, the crime of evading service for three days from September 17, 2009 to September 21, 2009, including two days from September 23, 2009 to September 24, 2009, should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, on the ground that the crime of leaving service for eight days or more does not fall under a case where a person deserts from service or fails to serve in the relevant field, and thus, the crime shall be declared not guilty pursuant to Article 325 of the Criminal Procedure Act.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the number of crimes committed in violation of the Military Service Act due to a deviation from service

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)