2015No1198 Violation of the Military Service Act

A

Prosecutor

Criminal prosecution, funeral or public trial

Chuncheon District Court Decision 2015 High Court Decision 401 Decided October 27, 2015

July 12, 2017

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 500,000.

When the defendant does not pay the above fine, the period calculated by converting 100,000 won into one day shall be

Defendant shall be confined in a workhouse.

1. Summary of grounds for appeal;

According to evidence, although the defendant can be found to have failed to respond to the call for the mobilization of military service without any justifiable reason, the judgment of the court below which acquitted the defendant, which affected the conclusion of the judgment.

2. Determination

According to the records, following the Defendant’s telephone call on April 27, 2015 between the person in charge of the mobilization training execution of the Gangwon regional military manpower office (F) and 1 minute 58 seconds at around 14:19 on April 27, 2015, on April 27, 2015 (the fact that the Defendant made a telephone call to the company of the reserve forces with the company of the reserve forces at around 40 seconds.

However, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court of the first instance, the above facts alone cannot be said to have justifiable grounds for the defendant to not enlist in the military force mobilization training notice even after receiving the notice. Thus, the prosecutor's above assertion is with merit.

① Article 129(4) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 26348, Jun. 30, 2015; hereafter referred to as "Enforcement Decree of the former Military Service Act") provides that a person who intends to obtain postponement of the date of enlistment, etc. shall submit a written application for postponement (including an application in an electronic document) to the head of a regional military service office by no later than five days prior to the date of enlistment: Provided, That where the ground for postponement does not have time to submit a written application for postponement (including an application in an electronic document) due to a sudden occurrence of the cause, he/she shall submit a written application for postponement (including an application in an electronic document) to the director of a regional military service office by telegraph or telephone, etc., and Article 129(5) of the former Enforcement Decree of the Military Service Act provides that "the director of a regional military service office shall decide whether to obtain a written application for postponement of the date of enlistment, etc. (including an application in an electronic document)."

② On October 10, 2014, six months prior to the occurrence of the instant case, the Defendant submitted an application for change of the date of enlistment in the military service, accompanied by the “application for change of the date of enlistment in the military service,” which was printed out on the homepage of the Supreme Court, to postpone military force mobilization training on October 14, 2014, and submitted to the “Gangwon regional military manpower office” to postpone military force mobilization training. In light of the above, the Defendant seems to have been well aware of the procedures for application for postponement of military force mobilization training.

③ As seen earlier, the authority to postpone the date of enlistment in the military force mobilization training is limited to the director of the regional military manpower office, and the chief of the consenting reserve forces did not have the authority to postpone the date of enlistment in the military force mobilization training, and thus, the CJ personnel of the C reserve forces did not appear to have been unable to answer to the effect that a soldier belonging to the C reserve forces would definitely postpone the date of enlistment of the defendant while making telephone conversations with the defendant. Even if the defendant stated that it is possible to postpone the date of enlistment in the C reserve forces when making telephone conversations with a soldier belonging to the C reserve forces, the defendant would have received a separate procedure prescribed by the law, and there is no other evidence to deem that the defendant had undergone a separate procedure.

(4) The defendant sent a call to the Military Manpower Administration to question the "whether to apply for postponement of the enlistment date" to the C reserve forces, and he thought that the training was postponed after the extension of the training period," which was called to C reserve forces, the defendant did not enlist in the designated date and time. However, in light of the above circumstances, it cannot be viewed that the above statement is credibility.

3. Conclusion

Therefore, since the prosecutor's appeal against the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is again decided as follows

[Judgment to be used again]

Criminal facts

Any person who has received a notice of call for military force mobilization training shall not be enlisted in the army on a designated date and time without justifiable grounds. Nevertheless, even though the defendant received a muster notice to attend a military force mobilization training conducted in the three units of the 36th group of the Army from May 6, 2015 to the third unit of the 108th group of the 36th group of the Army on April 2, 2015, the defendant did not enlist in the army on a designated date and time without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement of the accuser or accuser;

1. Copies of a list of military force mobilization personnel or a registered copy of a protocol;

1. Inquiries of the fact to the assistant military manpower office of a trial court; and

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 90(1) of the Military Service Act (Selection of Fine)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Reasons for sentencing

The defendant shall be sentenced to punishment as ordered in consideration of the favorable circumstances, such as the fact that the defendant has no previous error, and all kinds of sentencing conditions recorded in the records of this case, such as the age, character and conduct, environment, and circumstances after the crime.

Notarial Day (Presiding Judge)

For static purposes

Macyoung