An incomplete hearing of whether there is a legitimate reason for failure to enlist in the military

An incomplete hearing of whether there is a legitimate reason for failure to enlist in the military

Article 2 of the Act on Special Measures for Punishment of Crimes in Violation of the Military Service Act

Supreme Court Decision 77Do3846 Delivered on January 31, 1978

Defendant

Prosecutor

Attorneys (Korean National Assembly Line) Jinok

Seoul High Court Decision 80No1945 delivered on January 15, 1982

The judgment below is reversed and the case is remanded to Seoul High Court.

The prosecutor's grounds of appeal are examined.

The detailed implementation rules of the theory of the conscription must follow the revised implementation rules when the defendant refuses to comply with the enlistment order even if the enlistment order was null and void (see Supreme Court Decision 77Do3846, Jan. 31, 1978) or when the direction prescribed in the above provisions is changed, since the above provision provides that convicted prisoners and repeated offenders shall be excluded from enlistment on the date of enlistment under Article 72 (1) 1 of the above provision, which was enforced after September 1, 1974, because there was a violation of the Presidential Emergency Decree of the Military Manpower Administration, and therefore there was a provision to be excluded from enlistment in the event that there was a convict such as the theory of the above implementation rules, and on the basis, the defendant's failure to comply with the enlistment order. The court below did not err in the misapprehension of the enforcement rules of the above provision as to whether the defendant did not have any justifiable reasons for cancellation of the enlistment order after the revision of the enforcement rules at the time of the above revision of the enforcement rules.

Therefore, the judgment of the court below is reversed and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jong-young (Presiding Justice)