(a) Whether a non-identification person who does not constitute a soldier, military employee, etc. can become an accomplice for a violation of Article 41 of the Military Criminal Act (affirmative)

B. Whether a person who was enlisted in the Army Supplementary Team and was staying home can be the subject of the violation of the above law (negative)

A. The facts charged against the defendant committed a violation of Article 41 of the Military Criminal Act in collusion with the non-indicted. Thus, even though the defendant does not constitute a person corresponding to the non-indicted, such as a soldier or military employee, if the non-indicted has such status at the time of the crime, Article 8 of the Criminal Act is applied to Article 33 of the Criminal Act and Article 4 of the Military Criminal Act, and the defendant cannot be exempted from the criminal liability

B. If a person subject to enlistment in the army was enlisted in the army for the army, and was returned to the status of a person subject to enlistment in the army as a result of the physical examination conducted by the National Armed Forces, he shall not be a person subject to a violation of Article 41 of the Military Criminal Act, since he obtained his status as a soldier by enlistment in the army for the army and returned to the status of a person subject to enlistment

(a) Article 41 of the Military Criminal Act; Article 4 of the Military Criminal Act; Articles 8 and 33 of the Criminal Act; Article 28(1) of the Enforcement Decree of the Military Service Act;

A and one other

A co-inspector;

Gwangju District Court Decision 91No1731 delivered on August 21, 1992

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal

As to the facts charged in violation of Article 41 of the Military Criminal Act, the court below ruled that the defendants' act cannot be punished as a crime under the Military Criminal Act on the grounds that the defendants' act cannot be punished as a crime under Article 1 (1), (2), (3), and (5) of the Military Criminal Act except for the soldiers under Article 1 (4) of the same Act or persons corresponding to the soldiers under Article 1 (4) of the same Act. However, according to the evidence submitted by the prosecutor, the defendants cannot be acknowledged as a person with the status corresponding to the soldiers or soldiers, and the above crime is not listed under Article 1 (4) of the same Act.

However, according to the indictment of this case, since the facts charged against the defendants committed a violation of Article 41 of the Military Criminal Act in collusion with the non-indicted B (the co-defendant of the first instance court), even though the defendants do not constitute a soldier prescribed in Article 1 (1) of the same Act or a civilian military employee prescribed in paragraphs (3) and (5) of the same Article, the above non-indicted is acknowledged to have held such status at the time of committing the crime of this case, and Article 33 of the Criminal Act is applied in accordance with the provisions of Article 8 of the Criminal Act and Article 4 of the Military Criminal Act, and it cannot be exempted from the criminal liability as an accomplice. Therefore, the judgment of the court below should be criticized that the defendants committed an unlawful act of misunderstanding the legal principles as to

However, there is a question as to whether the above B had the status as a soldier. According to Article 1(2) of the Military Criminal Act, with regard to a soldier subject to the Military Criminal Act, it refers to an officer, warrant officer, lower-ranking officer, and enlisted soldier except for former soldiers. Article 2 subparag. 1 of the Military Personnel Management Act classify a soldier on active duty as an officer, warrant officer, lower-ranking officer, and enlisted soldier. Article 3(4) of the same Act classify a soldier into a soldier, a soldier, a first-class soldier, a first-class soldier, a first-class soldier, and a second-class soldier. Article 17(1) and (2) of the Military Service Act provides that the commander of a military unit shall examine a person subject to the Military Criminal Act within five days from the date of enlistment if the person subject to the active duty service was enlisted in the army, and stipulates that a person whose period of treatment is deemed unfit for active duty service, or whose physical grade or treatment is deemed necessary due to a disease or mental or physical disorder may return to the army on the date of enlistment.

According to the records, the above B was enlisted in the 306 Supplementary Team in the Army located in the city of the Government on July 10, 1990, and was returned to the status of a person subject to active duty service due to the enlistment in the above supplementary unit, and the result of the physical examination conducted in the 12th 7.12.

The facts charged of this case is that the defendants conspired with the above Eul and notified the defendant Eul to the above defendant Eul and the above Eul of the facts charged of this case, which caused the defendant Eul to undergo a re-examination for three months after the military officer in charge, such as wrong behavior and other behavior at the physical examination site conducted by the National Armed Forces of the Republic of Korea, and again returned home, the defendant's act of violation of Article 41 of the Military Criminal Act cannot be deemed to constitute a crime of violation of Article 75 of the Military Service Act, since the defendant's act of violation of Article 75 of the Military Service Act was conducted by the defendant's re-examination conducted on October 18, 190, and the defendant's act of violation of Article 75 of the Military Service Act was prepared to guarantee the mental disorder and mental disorder. The defendant's act of violation of Article 75 of the Military Service Act cannot be deemed to constitute a crime of violation of Article 75 of the same Act.

For this reason, the violation of the law of the court below as seen earlier does not affect the conclusion of the judgment. There is no reason to discuss.

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