Whether the failure of the chief of the reserve forces to report the original fact to the superior as it is constitutes a separate crime of abandonment of duties, in which the chief of the reserve forces prepares a false official document (negative)

If the president of the reserve forces knew of the failure to participate in the training of the members of the reserve forces, he/she has an official duty to take measures such as reporting it to the superior commander to which he/she belongs. However, if the member of the reserve forces concerned prepares and exercises a false list of the members of the reserve forces present in the training with intent to conceal the failure to participate in the training intentionally, his/her failure to participate in the training, the illegality of the failure to participate in the training is included in the same from the time of the preparation of a false official document, and even if he/she did not report it to the subordinate commander, even if he/she did not report it to the subordinate commander, the illegality of the failure to participate in the training has

Articles 122 and 227 of the Criminal Act

Supreme Court Decision 72Do722 Delivered on May 9, 1972

Defendant

Prosecutor

Busan District Court Decision 82No614 delivered on May 27, 1982

The appeal is dismissed.

The prosecutor's grounds of appeal are examined.

Of course, if the defendant, who is a commander of the reserve forces, knew of the failure to participate in the training of the members of the reserve forces, has an official duty to take measures such as reporting it to the commander of the reserve forces. However, if the member of the reserve forces intentionally prepared and held a list of false class organization of the number of members present in the training with the intention to conceal the failure to participate in the training, the illegality of the failure to participate in the training is included in the list of members of the reserve forces since the preparation of a false official document, and even if he did not report it to the commander of the reserve forces, even if he did not report it properly, the illegality of the failure to participate in the training is merely an ongoing state of illegality of the duty that was originally established, and it cannot be said that a new crime of neglecting duties has been established separately, and there is no error of law by misunderstanding the legal principles on the omission of duty.

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

Justices Kang Jong-young (Presiding Justice)