(영문) 대법원 2010.3.25.선고 2009도14994 판결

Article 1(2) of the Criminal Act provides that when the evaluation of acts deemed a crime in the past according to the changes in the legal ideology that served as the reason for the enactment of penal law has changed, and the evaluation has been recognized and punished as a crime itself, or when the Acts and subordinate statutes have been amended or amended in light of anti-discrimination that excessive punishment has been excessive, the new law is required to apply (see Supreme Court Decision 2003Do2770, Oct. 10, 2003, etc.).

According to the reasoning of the judgment below, the court below found the defendant guilty by applying Article 30 (1) 3 of the former Military Criminal Act (amended by Act No. 9820 of Nov. 2, 2009 and enforced from February 3, 2010, hereinafter the same) to the charges that the defendant was not returned to the unit for the purpose of evading military service even though he was to return to the unit under the jurisdiction of December 21, 2008, and that he was not returned to the unit under the jurisdiction of December 21, 2008, and that he was relieved of the unit for about six months until he was arrested under subparagraph 607 of the Dong-dong, Daejeon-dong, Daejeon Special Metropolitan City until he was arrested under Article 30 (1) 3 of the former Military Criminal Act.

However, Article 30 (1) 3 of the former Military Criminal Act provides that "a person who deserts a military unit or duty for the purpose of evading military service in cases other than enemy, war, incident, or martial law shall be punished by imprisonment with prison labor for not less than two years but not more than ten years." However, Article 30 (1) 3 of the Military Criminal Act (amended by Act No. 9820 of Nov. 2, 2009 and enforced from February 3, 2010) that enters into force after the sentence of the lower judgment (amended by Act No. 9820 of Feb. 3, 2010) provides that a person who deserts military service with the same content shall be punished by imprisonment with prison labor for not less than one year but not more than ten years. The purport of the amendment is that even if the form and motive of escaping military service differ, and is mainly caused by a family environment or external factor, it shall be deemed that the previous measure that had been punished by imprisonment with prison labor for not more than 2 years but not more than 10 years, constitutes an alteration of the former Act.

Therefore, the defendant's act of judgment is not punishable by the provisions of the former Military Criminal Act, which is a juristic person, but by the provisions of the new Military Criminal Act. Therefore, the judgment of the court below cannot be maintained because it falls under "when there is a change in punishment after the judgment of Article 383 subparagraph 2 of the Criminal Procedure Act."

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.