2019No724 Violation of the Military Service Act

A 93.Chos

Prosecutor

Kim Sang-sung (Court) (Court of First Instance), Kim Gin-hee (Court of Justice)

Attorney*(Korean National Assembly)

Ulsan District Court Decision 2018Gohap3050 Decided June 20, 2019

November 22, 2019

The judgment of the court of first instance is reversed.

Defendant B shall be sentenced to one year’s imprisonment: Provided, That the execution of the above sentence shall be postponed for two years from the date this judgment becomes final and conclusive. Ordering a community service for 160 hours to Defendant A.

1. Summary of grounds for appeal;

In light of the trend of changes in the body of the defendant, the court below found the defendant not guilty of the facts charged in this case by misunderstanding the fact that the defendant intentionally increased the body for the purpose of military service reduction and exemption, and thereby affecting the conclusion of the judgment, even though it is sufficiently recognized that the defendant intentionally increased the body for the purpose of military service reduction and exemption.

2. Determination

A. Summary of the facts charged in this case

No person shall injure his body or use a fraudulent act for the purpose of evading military service duty or having military service reduced or exempted.

Around July 31, 2017 to August 8, 2017, Defendant intentionally increased the body and received a disposition of convening a staff meeting meeting meeting meeting of class IV social welfare staff, knife food, etc., and submitted a changed military service disposition to the Korea Military Manpower Administration on October 23, 2017. On October 31, 2017, Defendant submitted the changed military service disposition to the Korea Military Manpower Administration. Around 176.6 cm from the chief prosecutor of the Busan Regional Military Manpower Administration’s military service judgment, 105.2 km from 105.2 km from the body, BMI 3.7, and 3.7, and the disposition was suspended by being measured as a result of a kidy kidne measurement on November 29, 2017, 17, 17, 17.5 cm, 40 cm, 17.4 m.

As a result, Defendant damaged his body with the intention of evading or exempting military service duty.

B. Judgment of the court below

In light of the fact that the court below made a statement to the effect that Defendant 2 would increase the volume of military service directly through the Internet broadcasting or any other channel, and how the Defendant calculated BI necessary to obtain Grade 4 from the Internet broadcasting around September 6, 2017 and expressed the genuine intent to reduce the duty of military service by using 6 km as an unexpected speech or behavior on the proposal of the audience, it is difficult to view that the Defendant’s adult body increased the number of times after 17.7 g from 0 to 19.27 g from 207 to 10.15 g from 207 to 19.15 g from 2017 to 207.15 g from 207 to 19.15 g from 207 to 2017.15 g from 207 to 19.15 g from 2017 to 207.15 g from 2017.

C. Determination on whether to conduct the deliberation

According to the evidence duly adopted and examined by the court below and the court below, the following facts and circumstances are acknowledged. In full view of this, it is recognized that the defendant damaged his body by temporarily increasing the body for the purpose of evading military service or having military service reduced or exempted.

The prosecutor's assertion is justified.

① Defendant received a physical examination on November 27, 2012 for entering the military. At the time, the weight of Defendant was 76 km, and was determined to undergo a 7th-class re-examination on the ground of psychotropic mental disease, but did not comply with a mental examination and treatment on May 22, 2013, and was determined to be subject to a 2nd-class enlistment. Since then, Defendant filed an application for postponement to enter the university on November 20, 2013, on March 26, 2015, on the ground that he was notified of enlistment on March 26, 2015, but did not undergo a practical qualifying examination, and on August 29, 2016, Defendant again applied for a re-examination on the ground of self-development, such as preparing for employment, and applied for military affairs counseling center on May 18, 2017 (hereinafter referred to as “civil affairs counseling center”).

② Around September 6, 2017, Defendant 1 found that another person’s DNA personnel fallon fallon fals, e.g., e., e., e., e., e., e., e., e., e. dallon fals, e., e., e., e., e., e., e. g., e., e., e., e., e., e. e., e. g., e., e., e., e., e. dals. e. e., e. g. d. d. d. d. d. d. d. e. d. d. d. e. d. d. d. d. d. d. e. d. d. d. e.).

④ On November 10, 2017, at the time of the non-regular measurement, Defendant sought a re-examination of the reason for the re-examination, and then asked Defendant 1 to undergo a non-regular and non-regular measurement several times. On November 29, 2017, Defendant 2 was subject to a non-regular measurement.

⑤ 피고인 은 2017.12.4.경 인터넷 방송에서 '아이, 그때 당시에는 안 뚱뚱했잖아요 ? 당연히 뺄 수 있죠. 한 달이면, 왜 못 빼요? 하루 종일 운동하는데 왜 못 빼요? 당연히 한 달 이면 10kg 이상은 뺄 수 있죠. 지금 이것도 한 달 만 에, 한, 두달 만 에 15kg 가 찐 건데. 진짜 한, 두 달 정도 만 에 15kg가 쪘는데, 한 달만에 10kg가 안 빠지 겠어요 ? ' 라고 언급 한바 있고, 2018.2. 15.경 인터넷 방송에서는 '4급 확정됨','훈련소검사 에서 살 빠진 거확인되어도 이미확정 되어서 번복 되는 일 없다고병무청 에서 들었음 ' , ' 혹시 훈련소가서 살빠지면 현역일 수 있냐고 물어봤었음 마지막 검사 때', '제가 살 찌운 건지 그냥찐건지 그 사람들이 어케 알고 재검토 신청을 해여', '그냥 그 이후 살 빼려고 마음 고쳐먹어서 독하게 뺀거라 하면 뭐 어쩔거임'이라고 언급한 바 있으며 , 2018. 3. 2. 경인터넷 방송에서는 자신의 배 에 튼살을 보여주면서'급격하게 찌면 튼살 생김 ' 이라고 언급하였고, 2018.5. 1.경 인터넷 방송에서는 자신의 몸무게를 재는 것을 보여 주었는데 ,체중계에 측정된 피고인의 체중은 93.2kg였다.

④ In order to receive the instant final judgment, it appears that the body weight of the Defendant would have to exceed 104 km. The Defendant’s body weight, the body weight of which exceeds 104 km, applied for a re-examination and measured the body weight on October 31, 2017, and only 106.5 km as at the time of the non-measurement measurement on November 29, 2017, and there is no record of exceeding 104 km prior to or after that measurement.

7) After the final judgment of Grade 4 became final and conclusive, the Defendant reduced approximately 13 km to 93 km, and the present body was stated at the court of the first instance as 95 km.

③ In addition to the purpose of Defendant’s above trend of change in the body, the above trend of change in body appears to be extremely natural, and the purpose of having Defendant reduced or exempted duty of military service, other circumstances are not peeped. Furthermore, the Defendant’s body at the time did not appear to have led to a situation that could not be avoided due to this disease, living environment, etc., and rather, Defendant’s body appears to have been adjusted by intention.

3. Conclusion

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

[Reasons for the judgment to be used] Any act of damaging a person or using a fraudulent act for the purpose of evading a duty of military service or having military service reduced or exempted.

On July 31, 2017 to August 8, 2017, Defendant intentionally increased the body and received a disposition of convening a staff meeting meeting meeting of class IV social welfare staff, and increased the weight by taking a large quantity of blade food, etc., and without doing any movement, Defendant submitted a military service disposition change to the Military Manpower Administration around October 23, 2017. On October 31, 2017, Defendant submitted a military service disposition change to the Military Manpower Administration. around 176.6 cm from the chief prosecutor of the Busan Regional Military Manpower Office’s military service, 105.2 km among the body, BM 3.7, and 3.7, and the disposition was postponed by being measured as a result of a kidy improvement, 17.4 cm, 17.4 cm, 53 cm, 44 cm, 17.4 cm, 53 cm, 4 cm and 4 cm.

Accordingly, Defendant damaged his body with the intention of evading military service or having military service reduced or exempted. Summary of evidence

Omission

Application of Acts and Subordinate Statutes

1. Article 86 of the relevant Act on Criminal Facts;

1. Suspension of execution;

Article 62(1) of the Criminal Act ( normal consideration in favor of the defendant among the reasons for sentencing below)

1. Social service order;

Article 62-2 of the Criminal Act, Article 59 of the Act on Probation, etc.

The reason for sentencing is recognized, such as the fact that the defendant seems to have been sentenced to Grade 4 by increasing the weight of the body on the ground that he had been in an excessive state at ordinary times, and that he has no record of criminal punishment exceeding the fine, etc.

However, in light of the fact that the crime of this case is highly likely to be criticized, considering the fact that the Defendant intentionally increased the body by artificially increasing the weight of the Defendant, which is the basic duty of military service under the Constitution, and is not serving in active duty service, and that it is not contrary to the nature of the crime, such as the background, method, etc. of the crime, the Defendant’s refusal to commit the crime of this case, and that the Defendant’s crime would undermine the people’s awareness and trust as to the performance of military service, and undermine the foundation of the military service system, the Defendant’s age, character and behavior, environment, motive, background, means and consequence of the crime, and circumstances after the crime, etc., the sentence shall be determined as per the disposition.

Judges Kim Jong-gu

Judges Kim Jong-sung

Judge Lee Il-il

1) Although the first instance judgment on the 3rd side of the first instance judgment stated 18 ' how to deduct 6km?', it seems to be a clerical error.

2) The first instance judgment on the 3rd page 21 seems to be written as "by means of physical weight," but seems to be erroneous.