The meaning of “justifiable cause” under Article 94 of the former Military Service Act, which is a penal provision for a case where a person liable for military service fails to return to Korea within the permitted period without obtaining permission for extension of the period from the Commissioner of the Military Manpower Administration even though it is difficult for him to return to Korea within the permitted period, and the standard point of time to determine whether there exists justifiable cause

Article 70(3) of the former Military Service Act (amended by Act No. 9754 of Jun. 9, 2009) provides that where a person liable for military service fails to return to Korea within the permitted period with permission for overseas travel, the permission for extension of the period shall be obtained from the Commissioner of the Military Manpower Administration by no later than 15 days before the expiration of the period, and Article 94 provides that a person who fails to return to Korea within the permitted period without justifiable grounds shall be punished by imprisonment for not more than three years. Therefore, where a person liable for military service is unable to return to Korea due to a cause not attributable to him, such as a sudden accident or disease, etc. during the overseas travel, the person liable for military service is not punished on the ground that he/she did not return to Korea within the permitted period, but if he/she fails to return to Korea within the permitted period without any justifiable reason, it shall be determined as at the time he/she did not return to Korea within the permitted period, except in extenuating circumstances.

Articles 70(3) and 94 of the former Military Service Act (Amended by Act No. 9754, Jun. 9, 2009) (see current Article 94(2))

Defendant

Defendant

Law Firm Sejong, Attorneys Kim Yong-dam et al.

Seoul Central District Court Decision 2017No2652 Decided November 30, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 70(3) of the former Military Service Act (amended by Act No. 9754, Jun. 9, 2009; hereinafter “former Military Service Act”) provides that where a person liable for military service fails to return to Korea within the permitted period after obtaining permission for overseas travel, permission for extension of the period shall be obtained from the Commissioner of the Military Manpower Administration by no later than 15 days before the expiration of the permitted period, and Article 94 provides that a person who fails to return to Korea within the permitted period without justifiable grounds shall be punished by imprisonment for not more than three years. Therefore, where a person liable for military service is unable to return to Korea due to a cause not attributable to him, such as a sudden accident or outbreak of disease during the overseas travel, the person liable for military service is not punished on the ground that he did not return to Korea within the permitted period. However, if a person fails to return to Korea within the permitted period without justifiable grounds, barring any special circumstance, whether there exists any justifiable reason should be determined at the time when he did not return to Korea within the permitted period.

2. The lower court found the Defendant guilty of the instant facts charged on the following grounds.

A. On January 20, 2006, which was after December 31, 2005, the expiration date of the permission for extension of overseas travel, the Defendant filed an application for extension for the purpose of medical treatment of illness with respect to wood and booming pains. However, the Commissioner of the Military Manpower Administration denied notification on the ground that “it cannot be deemed that the Defendant’s failure to return home within the permitted period does not constitute “justifiable cause”. Therefore, the Defendant violated Article 94 of the former Military Service Act by failing to return home even if he received a notification to return home by March 26, 2006.

B. The circumstance that the Defendant acquired permanent residence and applied for re-permission for extension on February 27, 2006 does not need to be considered to determine whether there exists “justifiable cause” as to the failure to return to Korea within the permitted period, after the expiration of December 31, 2005, the expiration date of permission for extension.

3. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on “justifiable cause” under Article 94 of the former Military Service Act, contrary to what is alleged in the grounds of appeal.

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

Justices Kim Chang-suk (Presiding Justice)