An order to surrender a person who has escaped from military service shall also be a legitimate order to a person whose statute of limitations for the crime of escaping from military service has expired.

An order to surrender a person who has escaped from military service shall also be a justifiable order to a person whose statute of limitations for the crime of escaping from military service has expired.

Article 47 of the Military Criminal Act

Supreme Court Decision 68Do660 Decided July 16, 1968

Defendant

Military prosecutor;

The Army Headquarters of the first instance, the Army Headquarters of the second instance, the High Army of the second instance, etc., and the High Military Port721 delivered on October 8, 1968

We reverse the original judgment.

The case shall be remanded to the Army, High School, and Military Council.

An appeal by the military prosecutor of the prosecution division of the High Army Law Association shall be deemed grounds for appeal.

In light of the reasoning of the judgment below, the order of the Chief of Staff of the Army to surrender himself to a military police unit near each district from February 1, 1967 to the 28 of the same month may be punished for not returning to the military police unit. In this case, as in the above case, a person who could not be punished due to the expiration of the statute of limitations for the crime of escaping from military service may be punished for not returning to the military police unit. If the above order of return was issued from time to time against a person who escaped from the military unit due to the commission or other crime of escaping from military service or other crime, the punishment may not be exempted regardless of the statute of limitations, even if the statute of limitations has expired for the person who escaped from the military unit due to the commission or other crime of escaping from military service, which results in suspending the effect of Article 248 of the Military Court Act, which provides for the statute of limitations system, and thus, the above order of return to the military cannot be deemed as a "justifiable order" under Article 47 of the Military Criminal Act.

However, according to the records of Japan, since the President of the Army Staff promulgated the so-called return order as mentioned above, he was in active duty service at the time of January 26, 1967. In light of the above contents, the above order is a legitimate order under Article 47 of the Military Criminal Act issued by an immediate superior officer who is the defendant and the defendant as the recipient of active duty service (see Supreme Court Decision 68Do660 delivered on July 16, 1967). Thus, the court below's decision contrary to the precedents of the Supreme Court and thus it is obvious that it affected the judgment, it shall not be reversed.

Therefore, the original judgment is reversed, and the case is remanded to the Army, High Military, and it is so decided as per Disposition by the assent of all participating Justices.

Judges of the Supreme Court (Presiding Judge) Do-dong Do-won Nababri