2018 Highest 2471 Violation of the Military Service Act

A

Kim Man-tae (prosecution) and Lee In-bok (Public trial)

Attorney B

March 6, 2019

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Criminal History Office

No person shall injure his body with the intention of evading military service or having military service reduced or exempted.

When the Defendant was aware of the fact that he could be exempted from military service on the grounds that he was fryd on the part of his chest, arms, and part part of a ship by the Military Manpower Administration around September 2, 2015, and that he became aware of the fact that he could have been exempted from military service on the grounds that he was fryd on the part of the body part of his body, and that he could have been exempted from military service on the grounds that he was judged on the part of Grade III active duty service, the Defendant was exempted from military service. In order to be exempted from military service on the grounds that he was exempted from military service, the Defendant was exempted from military service on the part of the face, other than the face, such as the part of the part of the part, the bridge, etc., which had not been fryed on the face of Changwon-si from October 2017 to February 27, 2018, at the central counter of Changwon-si, Seoul District Military Manpower Office, after undergoing a new draft physical examination, and the Defendant was exempted from military service.

Summary of Evidence

1. Partial statement of the defendant;

1. The order of taking photographs of telegraphic body and literary treatment;

1. A notice on the prevention of evasion of military service;

1. Application of Acts and subordinate statutes to request a person suspected of evading military service, to investigate the military register, to conduct physical examination, to conduct internal investigation (organization of tape-recording files of civil petition counseling centers and to confirm a written determination of precise physical examination), and to make a ruling of precise physical examination of

1. Article applicable to criminal facts;

Article 86 of the Military Service Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution;

Judgment on the assertion of the defendant and defense counsel under Article 62(1) of the Criminal Act

1. Defendant and his defense counsel’s assertion

(a) the assertion that there was no purpose or intention;

While the defendant has been interested in the original correspondence, he did not have a purpose of evading military service or having military service reduced or exempted.

B. Impossibility of impossibility or impossibility of attempted crimes

Since the Defendant was judged at Grade IV due to his behavior disorder (conscion and behavior disorder) on October 29, 2018, it was not possible for the Defendant to evade military service due to the instant text, and the Defendant’s act constitutes an impossible crime and constitutes an impossible attempt.

2. Determination

A. Determination as to the defendant's assertion that there was no purpose or intention

Comprehensively taking account of the following circumstances acknowledged by evidence, it is reasonable to determine that the Defendant had a purpose of evading military service when making a reply to the text written in the facts charged of the instant case, and the intent of the instant crime is also recognized. Even if there was a separate purpose of completing a sentence on the condition that the Defendant had not completed his military service, whether the Defendant had a purpose other than the purpose of evading military service or having military service reduced or exempted or exempted does not interfere with the establishment of the instant crime.

① On September 2, 2015, when the Defendant received the first draft physical examination on September 2, 2015, he was judged to be subject to the third level active duty service on the ground of correspondence, and “the thickness is subject to the disposition of a person subject to enlistment in active duty service by means of physical examination, correspondence, etc. If the Defendant is assigned to class 4 supplemental service, he would be subject to the investigation by the special judicial police officer of the Military Manpower Administration due to physical damage and fraudulent act, and would be subject to criminal punishment according to the result,” and the Defendant received a notice for the prevention of evasion of military service. At least, the Defendant could have sufficiently known that the exemption of the military service could occur when making additional correspondence.

On November 14, 2016, the Defendant was enlisted in active service on November 14, 2016, and returned to Korea on November 16, 2016. The Defendant was subject to a follow-up physical examination on February 2, 2017 and around October 2017 (as a result of the determination, class 7 corresponding to “persons who are difficult to make a determination due to disease or mental or physical disorder”), and the Defendant was scheduled to undergo additional follow-up physical examination.

③ From October 2017 to February 2018, the Defendant: (a) inserted the text of an additional leg and the leg, and expanded the area and the part of the gate by telegraph.

④ The fact that correspondence affects the performance of the duty of military service is relatively widely well known in society, and in particular, the Defendant, who had read people around that region, may have been well aware of such fact.

B. Determination on the Defendant’s assertion that an impossible crime or an impossible attempt constitutes an impossible crime

The defendant's assertion that the defendant's act constitutes an impossible crime or an impossible attempted crime under Article 86 of the Military Service Act is premised on the necessity of the occurrence of a result of evading military service in order to establish a crime under Article 86 of the Military Service Act, and as long as this premise cannot be accepted, this part of the defendant's assertion is without merit.

The grounds for sentencing are as follows: the Defendant’s age, character and conduct, the contents and circumstances of the instant crime, and the circumstances after the crime are considered, and the punishment is determined as ordered in full view of various sentencing conditions.

The crime of this case is committed with the intent of evading military service or having military service reduced or exempted, and the responsibility for such crime is heavy, and strict measures are required to undermine the foundation of the military service system.

○ favorable circumstances: The Defendant appears to have led to committing the instant crime in the process of having his sentence toward personal life, not to mentioning that he would have been exempted from military service from military service from the beginning. Diseases such as impulse and emotional distress disorder of the Defendant appear to have influenced a certain part of the instant crime, and the Defendant was judged at Grade 4 of the Military Service Physical Grade for reasons such as the foregoing impulse disorder. The Defendant had no record of criminal punishment prior to the instant case.

Judges Ho Sung-ho