[1] The relationship between the duty to obey punishment and the duty of military service

[2] The meaning of an act of escaping or hiding a person under Article 86 of the Military Service Act

[3] The case holding that it is difficult to view that exemption from the duty of public duty personnel call from the duty of military service under Article 86 of the Military Service Act constitutes "dol or locked" for the purpose of evading the duty of military service under Article 86 of the same Act because he voluntarily expresses his intention to inform the fact that he did not pay a fine and to be taken into custody in a

[1] The duty to obey the enforcement of the State punishment and the duty to respond to the notice of convening a call for performance of the duty to serve in the military can not be fulfilled at the same time due to their nature, and there is a conflict and competition among the two obligations. In particular, the provisions of the relevant statutes stipulate the execution of the punishment by reason of the reason for the compulsory postponement in relation to the conscription, call-up, enlistment, etc. for the person liable for military service, and stipulate in detail the procedure of convening a call-up after the postponement of the cause for postponement. However, in light of the fact that the Criminal Act or the Criminal Procedure Act does not entirely stipulate the execution of the duty to serve in the military as a reason for exception such as postponement, postponement, reduction, etc. of the execution of the duty to serve in the military, it is recognized that the execution of

[2] Unlike "abscaping enlistment, etc." under Article 86 of the Military Service Act, the term "an act of evading enlistment, etc." refers to an act of evading or evading the performance of military service or causing the reduction or exemption of military service by itself.

[3] The case holding that it is difficult to view that exemption from the duty of public duty personnel call from the duty of military service under Article 86 of the Military Service Act constitutes "dol or locked" for the purpose of evading the duty of military service under Article 86 of the same Act because he voluntarily expresses his intention to inform the public prosecutor's office of the fact that he did not pay a fine and to

[1] Articles 60 and 71(1) of the Military Service Act, Article 128(3) of the Enforcement Decree of the Military Service Act / [2] Articles 86 and 88 of the Military Service Act / [3] Article 86 of the Military Service Act

Defendant

Kim Jink

Attorney Kim Jae-soo

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

On March 28, 2005, the Defendant was sentenced to 10 months of imprisonment for fraud at the Busan District Court on December 22, 2005, and completed the execution of the sentence at the Busan District Court on December 22, 2005, and on December 20 of the same year, was sentenced to a fine of 7 million won in the same court as a fraud.

2006. 7. 12. 부산 금정구 서동 (지번 생략) 피고인의 집에서 같은 해 8. 24. 13:00까지 논산시 연무읍 금곡리 소재 육군훈련소에 입소하라는 부산지방병무청장 명의의 공익근무요원소집통지서를 전달받자, 1996년 2월경부터 2006년 5월경까지 순차로 대학진학, 공군장교선발시험 응시, 대학원진학, 사법시험 2차 시험 응시, 동생의 현역병 입영, 징역형 집행, 자격시험 응시 등의 사유로 7회에 걸쳐 입영기일을 연기하여 왔고 병역법에 의하여 31세가 되는 해인 2007. 1. 1.부터 제2국민역에 편입되어 공익근무요원소집의무가 면제됨을 기화로, 소집기일인 2006. 8. 24. 12:00경 대전지방검찰청에 스스로 찾아가 위 벌금 700만 원의 미납사실 및 벌금납부능력이 없음을 밝히며 노역장유치처분을 받겠다는 의사를 표시하고, 그 무렵 피고인의 동생인 공소외 1로부터 위와 같이 피고인이 소집에 응하지 아니하고 대전지방검찰청에 찾아갔다는 사실을 연락받은 부산지방병무청 대체복무팀 소속 직원 공소외 2와 위 검찰청 집행과 소속 직원 공소외 3이 협의하여 피고인에게 소집에 응할 것을 권유하면서 노역장유치처분을 집행하지 아니하고 13:46경 돌려보내자 같은 날 19:30경 부산지방검찰청에 찾아가 다시 벌금미납사실과 벌금납부능력이 없음을 밝히며 노역장유치처분을 받겠다는 의사를 표시하여 같은 날 22:50경 부산 사상구 주례3동 666 부산구치소에 노역장유치 수용됨으로써 병역의무를 기피할 목적으로 도망하였다.

2. Determination:

A. Facts and issues

(1) According to the evidence and records submitted by the prosecutor, most of the facts stated in the facts charged are acknowledged, and in addition, the following facts are acknowledged in relation to the defendant's military service and confinement in prison of the defendant at issue in this case.

(A) Military service related

① In March 1995, the Defendant was determined as a person subject to first-class enlistment on February 6, 1996, and was notified of enlistment on February 6, 1996, but was postponed on the grounds of college study, and was postponed on five occasions until January 17, 2005, and was transferred to replacement service on September 26, 2005 (execution of imprisonment with prison labor, which was declared on March 28, 2005, all of the facts of the prosecution, was transferred to replacement service on September 26, 2005.

② Since then May 11, 2006, the Defendant had been postponed the date of enlistment more twice, and lastly, July 12, 2006, the Defendant was notified of the instant public interest service personnel call to “the content of imposing the duty to serve in the military: the date of call-up to the public interest service: August 24, 2006; the call-up unit: the Army Training Center: the call-up notice was given, but it was impossible to respond to the call-up due to the acceptance of the labor station in the Busan Detention Center around 22:50 on August 24, 2006, which is the date of call-up as stated in the facts charged.

(B) Concerning the confinement in a workhouse

① On the other hand, on December 20, 2005, the Defendant was sentenced to a fine of 7 million won (50,000 won per day of exchange inducement) at the Busan District Court on fraud, and the above judgment became final and conclusive on May 7, 2006, and the Defendant did not pay the above fine, and the Busan District Prosecutors' Office urged the Defendant to pay the fine on August 21, 2006 at the Busan District Prosecutors' Office.

② After that, as indicated in the facts charged on August 24, 2006, the Defendant expressed his/her intent to find out to the Busan District Prosecutors' Office that he/she would not have the ability to pay a fine and to have the Defendant detained in the workhouse. Accordingly, the prosecutor of the Busan District Prosecutors' Office issued the direction of execution of detention in the workhouse (a fine of KRW 7 million, KRW 50,000 per day, KRW 1,40,000 per day, and KRW 1.40 days per day) to the Defendant, and accordingly, the Defendant was detained in the workhouse in Busan Detention House from August 24, 2006 to November 24, 2006, and thereafter completed the execution of the above detention on November 10, 2007, where the trial was pending.

(2) Accordingly, the prosecutor deemed the Defendant’s act as constituting “the escape for the purpose of evading the duty of military service” and subsequently indicted the Defendant for violating Article 86 of the Military Service Act.

On the other hand, the defendant also recognized the above facts as a substitute for the execution of a sentence under the Act. However, the above confinement in the workhouse is a kind of legitimate cause for postponement of enlistment under the Military Service Act. At the time, the defendant was extremely unable to be subject to execution of detention in the workhouse because he was not able to pay the above fine of seven million won. However, if he complies with the above notice of the public duty personnel call, he may be subject to execution of detention in the workhouse when he was enlisted in the Army Training Center or is under training after serving as a public duty personnel service personnel, or may be subject to execution of the duty of military service after completing the above execution of the duty of military service after completing the above execution of the duty of military service first, but he tried to perform the duty of military service after completing the expected disadvantage or the unstable status. In addition, the defendant did not evade the duty of military service, as stated in the facts charged, with the aim of evading the duty of military service in violation of Article 86 of the Military Service Act.

(3) Ultimately, the key issue of this case is whether the defendant's act as stated in the facts charged, the defendant's intention to have him found in the prosecutor's office to have been detained in prison and can be evaluated as "the network" for the purpose of evading military service under Article 86 of the Military Service Act, and whether it can be acknowledged that the defendant had the purpose of evading military service.

B. Relevant statutes such as the Military Service Act and the Criminal Procedure Act: see the attached Form.

(c) Markets:

(1) As to the confinement in a workhouse

피고인이 공익근무요원소집통지서를 받고서도 그 소집일로 지정된 당일에 소집에 불응한 채 스스로 검찰청에 찾아가 판결이 확정된 위 벌금 700만 원을 납부할 능력이 없음을 밝히며 노역장유치처분을 받겠다는 의사표시를 한 사실은 앞서 본 바와 같으나, 이후 이루어진 노역장유치의 집행 및 그에 따른 구치소 수용은 피고인의 위와 같은 의사표시와는 무관하게 어디까지나 이미 확정된 형사판결에 따른 국가형벌권 집행의 일환으로 형법 및 형사소송법이 정한 절차에 따라 형집행기관이 행한 처분인바, 피고인으로서는 벌금을 완납하지 못한 이상 마음대로 그 노역장유치집행의 여부나 시기, 방법 등을 결정·선택하거나 이에 직접 어떠한 영향을 미칠 수도 없는 것이고, 이와 같은 형집행기관의 처분에 마땅히 복종하여야 할 의무가 있을 뿐이다.

(2) As to the relationship between the execution of punishment and the duty of military service

In the case of this case, the defendant, around August 24, 2006, at the time of the notice of convening the national penal authority as mentioned above, was concurrently liable for two obligations to obey the execution of the national penal authority and to comply with the notice of convening the military service to fulfill the duty of military service, and each obligation cannot be fulfilled at the same time due to its nature, and thus there is a conflict and competition among the two obligations. In particular, the provisions of the relevant Acts and subordinate statutes stipulate the "execution of punishment" as a reason for the postponement of the enlistment, call-up, enlistment, etc. to the person liable for military service after the postponement of the postponement of the execution of the duty of military service and the procedure of convening the military service after the postponement of the postponement of the execution of the execution of the duty of military service under the Criminal Act or the Criminal Procedure Act. However, in light of the fact that there is no provision on the "execution of punishment" as a reason for exception such as postponement or postponement of the execution of the duty of military service or reduction or exemption.

However, as a matter of principle, Article 71 of the Military Service Act provides for reduction of and exemption from the duty to enlist in the military on the basis of the age of 31 and exceptionally causes exist under each subparagraph of the proviso, the base date of reduction and exemption is extended to 36 years of age. However, unlike the provisions on “contestation, call-up, and enlistment” as seen earlier, there is no provision under each subparagraph of the proviso as to “persons under execution of punishment.” Thus, the Defendant, after January 1, 2007, after the lapse of January 1, 2007, when he was under 31 years of age when he did not respond to call-up due to confinement in the above custody in the workplace, completed the above custody on January 10, 207, thereby completing the execution of the above custody. Accordingly, it appears that the Defendant is exempt from duty to call-up to call-up to the second citizen service.

(3) As to whether “dognet” constitutes “dognet”

Article 86 of the Military Service Act, separate from the charges of this case, provides for the punishment of evading enlistment or call under Article 88 of the same Act, in which the prosecutor had tried to commit the act of evading enlistment or call-up, and as a matter of the interpretation of the above provisions, "an act of evading enlistment, etc." under Article 86 of the same Act refers to an act of evading or evading the performance of the duty of military service or causing the reduction of or exemption from the duty of military service under Article 88, unlike "a evasion of enlistment, etc." under Article 88. Thus, the defendant's act in this case can be seen as one of his act in the above case, "the defendant expressed his will to be in custody in the Switzerland executive organ" and "an act of evading the duty of military service as a result of securing the defendant's new illness by the state according to the nature of detention in the workhouse, securing the performance of the duty of military service (in this case, duty to respond to call-up), execution of the duty of military service, execution of the duty of military service and related laws and regulations, etc.

In addition, in relation to the selection and exercise of legitimate authority under the laws and regulations of the State in the state of collision and competition with the latter, and the result thereof (the confinement in the workplace and the subsequent postponement of convening a meeting and exemption from the result of convening a meeting under Article 71 of the Military Service Act), the defendant has a duty to obey and accept it, and as such, the defendant has a duty to only evade the duty of military service. Thus, under the intention of the defendant solely evading the duty of military service, there is no evidence to acknowledge special circumstances, such as the defendant's expectation of the aforementioned result from the beginning with the intention to evade the duty of military service, and that there is no other evidence to prove that the defendant actively and systematically following the above time or situation was active and planned, it cannot be evaluated as the defendant's act, and it is difficult to hold the defendant liable for it.

D. Sub-committee

In addition, as seen earlier, it is difficult to view the Defendant’s act as falling under “the network” for the purpose of evading duty of military service. In addition, in full view of the statement on the grounds that the Defendant expressed his intent to have the Defendant perform his duty of military service in economic form or in prison at the time indicated in the record, and the contents of the crime of fraud, which was sentenced to a fine of KRW 7 million, its final judgment, and the progress from the time of detention in prison, the Defendant’s assertion that there was no purpose of evading duty of military service as mentioned in Article 2. A. (2) is not acceptable, and on the other hand, it is insufficient to conclude that there was “the purpose of evading duty of military service” to the Defendant even with all evidence submitted by the prosecutor, and there is no other obvious evidence to acknowledge this otherwise

3. Conclusion

Thus, the facts charged against the defendant constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Park Jae-young