Defendant

Prosecutor

Water taken, dried and dried-up trials;

Attorney Kim Byung-kick (Korean National University)

Daegu District Court Decision 201Na936 decided January 18, 2012

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Comprehensively taking account of the evidence submitted by the prosecutor, although the defendant cannot be deemed to have justifiable grounds for evading enlistment, the judgment below which acquitted the defendant on the ground of justifiable grounds is erroneous in the misapprehension of legal principles and thereby affected the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

On March 29, 2011, the Defendant was sentenced to a suspended sentence of ten months on the grounds of a violation of the Military Service Act and a crime of habitual fraud in Daegu District Court racing support. On June 14, 2011, the Defendant was sentenced to a suspended sentence of four years on October, 201, and is currently subject to enlistment in full-time reserve service.

On August 9, 2011, the Defendant received a notice of enlistment under the name of the director of the Daegu-gu regional military manpower office to enlistment in the active service enlistment division and office located in Jung-gu District Military Manpower Office until September 5, 2011, from the Daegu-gu regional military manpower office and office to the Marine Education and Training Group located in Yongsan-gu, Taecheon-gu, Daegu-gu, Taecheon-gu, Incheon-do, to enlistment, but did not enlist without justifiable grounds until September 8, 201, for which three days have passed from the date of enlistment.

B. The judgment of the court below (whether there exists a “justifiable cause” under Article 88(1) of the Military Service Act

“Justifiable reason” under Article 88(1) of the Military Service Act means a reason for which a person subject to enlistment cannot be held responsible for the result of evading the enlistment. In this case, comprehensively taking account of the Defendant’s legal statement, Nonindicted Witness’s legal statement, etc., ① the Defendant was called from the Nonindicted Public Officials in charge of the Daegu-do regional military manpower office to enlistment up to 17:00 on the day on September 5, 2011; ② the Defendant was in transit with the Nonindicted Party on September 15, 2011, and it is impossible for the Nonindicted Party to enlist up to 17:00 on the present date of enlistment. However, according to the purport that “The Defendant could not enlist within 3 days from the date of enlistment, but should not enlist until the date of enlistment,” the Defendant appears to have waived his duty to enlist from the Military Service Act to the effect that “In the case of the Defendant, the Defendant did not have any inevitable reason for natural disasters as stipulated in Article 24(1) of the Enforcement Decree of the Military Service Act, and thus, the Defendant could not have delayed enlistment.”

Therefore, the defendant's challenge to enlistment is due to reasons not attributable to the defendant, and in the case of the defendant, there is a justifiable reason under Article 88 (1) of the Military Service Act, and the court below acquitted the defendant under the latter part of Article 325 of the Criminal Procedure Act on the ground that the facts charged in this case constitute

C. Judgment of the court below

Article 88(1) of the Military Service Act, which provides that a person who has received a written notice of enlistment in active duty service, shall be punished when he fails to enlist within three days from the date of enlistment without justifiable grounds. The above provision does not punish a person who fails to enlist within three days from the date of enlistment without justifiable grounds. However, the purport that a person who did not enlist within three days from the date of enlistment does not punish a person who did not enlist within three days from the date of enlistment shall be construed to the effect that he does not punish him regardless of justifiable grounds (see Supreme Court Decisions 203Do5365, Dec. 26, 2003; 2003No5150, Aug. 20, 200, etc.).

In light of the following circumstances acknowledged by comprehensively taking account of the details and contents of the crime of this case as revealed in the circumstances acknowledged by the court below in the above, and evidence duly adopted and examined in the trial, namely, where a public official in charge of the non-indicted of the Daegu North Korean regional military manpower office at the time fails to enlist in the military by admitting a fake on the date of enlistment as the defendant's situation does not constitute "inevitable reasons" as provided in Article 24 (1) of the Enforcement Decree of the Military Service Act, and thus, the defendant is not a person subject to delayed enlistment, and thus, the defendant did not completely inform the defendant of the procedure for reporting a delayed enlistment and the procedure for a delayed enlistment. Thus, the defendant's failure to enlist in the military after a lapse of three days from the date of enlistment does not constitute a person subject to delayed enlistment by arbitrarily interpreting Article 88 (1) of the Military Service Act and Article 24 (1) of the Enforcement Decree of the same Act, the court below did not err by misapprehending the legal principles on the facts charged in this case and thereby did not err in the judgment below.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Hyun-hwan (Presiding Judge) and Kim Jong-hee