Defendant

Defendant

Lee Young-Nam (Public Prosecution) and Extraordinary (Public Trial)

Attorney Lee Byung-gun et al.

Seoul Central District Court Decision 2016 Height9448 Decided July 5, 2017

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (the factual error, misunderstanding of legal principles, and unreasonable sentencing)

A. misunderstanding of facts and misapprehension of legal principles

1) Claims that there are justifiable grounds for failing to return to Korea within the period of overseas travel

1) A violation of Article 94 of the former Military Service Act is established when a person fails to return to the Republic of Korea within the period of overseas travel without justifiable grounds. For the following reasons, the Defendant was unable to board the aircraft for a long time due to the brush certificate, etc. at the time, and obtained permanent residence around that time. As such, there is “justifiable

① Around January 2006, the Defendant was 28 years of age, and it was impossible for the Defendant to take a long-time flight aircraft due to disease, such as an antigradism, and at least two to three months of medical treatment. As such, Article 61(1) of the former Military Service Act and Article 129(1)1 and 129(2) of the former Enforcement Decree of the Military Service Act constitute “a person who obtained permission to extend the period of overseas travel by 28 years of age,” and thus, it was possible to postpone the date of enlistment, etc. within the extent of one year.

② On February 27, 2006, the Defendant: (a) obtained a permanent resident certificate on February 27, 2006, and falls under Article 19(1) [Attachment 2] of the former Regulations on the Handling of Overseas Travel Affairs (Ordinance of the Military Affairs Administration, Article 626 of the Directive; hereinafter “Regulation”) 7 No. 19(1) and thus, has to extend the period of overseas travel within the scope of one year and six months; and (b) when one year has passed after the acquisition of permanent resident certificates, the extension of the period of overseas travel by the age of 35 shall be permitted because the Defendant fell under “a person who has resided after obtaining permanent resident certificates” as set forth in [Attachment 3] No. 1 of the Directive No. 26 [Attachment 3]; and (c) permission for extension on the ground of

③ Since it is a new reason that the Defendant applied for extension of the period of overseas travel on March 22, 2006 on the ground of “acquisition of permanent sovereignty” is different from that applied for on the ground of the existing “disease,” the Commissioner of the Military Manpower Administration, who received the application, shall conduct a new review. However, it is clearly unlawful to return without a review, considering that it is a request for second review pursuant to Article 22(4) of the Directive, and if the Commissioner of the Military Manpower Administration conducted a new review, it would have become an extension permission as seen above.

2) Claim on the expiration of the statute of limitations or suspension of the statute of limitations

For the following reasons, a violation of Article 94 of the former Military Service Act is a crime in which a crime is completed unless the defendant returns to the Republic of Korea within the period of permission for overseas travel. Thus, when the defendant does not return to the Republic of Korea on March 26, 2006, the statute of limitations is terminated, and the defendant does not stay in the United Kingdom for the purpose of evading criminal punishment, and the statute of limitations has not been suspended. Thus, the statute of limitations expired on March 25, 2009 after three years from March 26, 2006.

(1) According to the language and text of Article 94 of the former Military Service Act, if a person does not return to Korea within the permitted period of overseas travel, the crime is established immediately, and the term “period during which a person does not return to Korea” is not required as an element of a crime, and whether a person stays in a foreign country without

② Judicial precedents regard the nature of the crime of escaping from military service as a crime immediately and report that the crime is completed immediately when the person fails to return to his/her duties without good cause. A violation of the order to return to military service also violates the order to return to military service shall be deemed a crime committed immediately when the violation of the order to return was committed, and the order to return is regularly

③ After leaving the Republic of Korea on February 24, 1996, the Defendant entered the United Kingdom to ○○○○○○ Gak, △△△△△ University, △△ Geaeeaeea, and the Geaeaeaeea, an Geaeaea, an Geaeaeaea, which had been notified of the refusal of the extension, performed his studies at the Arts Graduate School of the United Kingdom on and after March 26, 2006. After the graduation, the Defendant was staying in the United Kingdom for ten (10) years, which had been continuously three times the statute of limitations period before and after the occurrence of the crime. Since the Defendant was 36 years old whose military occupation was over 36 years old on September 2013, the Defendant cannot be

B. The assertion of unfair sentencing

Considering the following circumstances, the lower court’s imprisonment (ten months of imprisonment) is too unreasonable.

1) The Defendant is eligible to obtain permission for the extension of overseas travel at the time of 2006.

(1) In addition to the acquisition of permanent sovereignty, the Defendant may extend the age limit for each school by adding one year to that of a person who attends a foreign school pursuant to Article 147(5) of the former Enforcement Decree of the Military Service Act, to the extent that it does not exceed 28 years old as he/she is difficult to graduate or obtain a degree within the age limit

② The mother of the Defendant’s mother was residing as a permanent resident in France, and was able to correspond to “the father or mother who acquired the permanent resident status and who resides abroad” pursuant to Rule 2 No. 2 of the Directive [Attachment II].

2) There was no intent to evade military service by the Defendant, and the Defendant was urged to do so.

(1) Where a defendant legally desires to be exempted from military service, he shall obtain an extension of the period of time until the age of 35 pursuant to subparagraph 1 of attached Table 3, and take a method of incorporation into the second citizen service from the age of 36 to the second citizen service, but

② The Defendant applied for extension of the period of overseas travel on January 14, 2006 without acquiring the right of permanent residence in advance.

3) Since permanent residents are assigned to the second citizen service as above and are exempt from military service, the Defendant should also be punished compared with the exemption of permanent residents from military service.

2. Judgment on misconception of facts and misapprehension of legal principles

(a) Relevant statutes;

It is as shown in the attached Form.

B. Facts acknowledged by the evidence, etc. of the court below

1) The reasons why the Commissioner of the Military Manpower Administration did not permit the extension of overseas travel to the Defendant are as follows (see, e.g., double evidence records).

① On February 24, 1996, the Defendant (date of birth omitted), who was 18 years of age, left the UK and was attending school.

② The Defendant obtained permission for extension of overseas travel from the Commissioner of the Military Manpower Administration on several occasions, and obtained permission for extension of overseas travel until December 31, 2005, with the purpose of travel on January 4, 2005 as “paying abroad.” The period has been extended until December 31, 2005.

③ On December 8, 2005, the Defendant returned temporarily and went to the United Kingdom on December 8, 2005, and applied for the extension of the period of overseas travel on January 20, 2006 as “medical treatment for disease” (Evidence No. 2/31 of the evidence record).

④ On January 23, 2006, the Commissioner of the Military Manpower Administration requested the Defendant to submit “the clinical materials proving that the Defendant cannot move to the disease treatment process, such as a medical certificate and translation.” On January 23, 2006, the Defendant submitted a written diagnosis to the Embassy of the Republic of Korea in France along with the medical certificate.

⑤ On January 24, 2006, the Commissioner of the Military Manpower Administration issued a non-permission notice on the ground that “it cannot be deemed as a disease treatment to the extent that it is difficult to return to the country,” and around that time, notified the Defendant to return to the Republic of Korea until February 23, 2006 (Evidence Record 2: 37-39 pages).

④ On January 26, 2006, the Defendant submitted to the Embassy of the Republic of Korea to the Embassy of the Republic of Korea along with the details of the disease treatment and the certificate of the disease treatment. As of February 3, 2006, the Commissioner of the Military Manpower Administration issued a non-permission notice to the Defendant as of January 24, 2006, and notified the Defendant that he should return to the Republic of Korea until February 23, 2006.

7) On February 22, 2006, the Defendant applied for reexamination upon the receipt of the Republic of Korea Embassy in the Republic of Korea (Evidence Nos. 28-49) (Evidence No. 48-49), and on February 23, 2006, the Defendant submitted the first supplementary document on January 24, 2006, and submitted the second supplementary document on January 31, 2006, and the Defendant did not confirm to the person in charge on February 1, 2006, and did not confirm the second supplementary document. The Commissioner of the Military Manpower Administration should have dealt with the Defendant’s application for extension of the period of overseas delivery on February 20, 206 after February 24, 2006, on the ground that the Defendant’s notification as of January 24, 2006 was rejected (Evidence No. 243).

(8) As of February 23, 2006 from the Commissioner of the Military Manpower Administration, “the Commissioner of the Military Manpower Administration sent supplementary documents to FAX from the Embassy of the Republic of Korea on January 24, 2006, and then notified the Defendant of the non-permission on January 24, 2006. The Commissioner of the Military Manpower Administration sent a reply to the following: “The first supplementary documents as of January 26, 2006, and the second supplementary documents as of January 31, 2006, are not received through diplomatic missions, but only received by facsimile.” On February 24, 2006, the Commissioner of the Military Manpower Administration notified the Defendant of the non-permission on the grounds that “the head of the Si/Gun/Gu cannot be deemed to have diseases to the extent that it is difficult to return to the Republic of Korea,” and the Commissioner of the Military Manpower Administration notified the Defendant of the non-permission date as of February 27, 2006.

① Meanwhile, the Defendant filed an application for permanent residency with the Government of the United Kingdom on February 24, 2006, when ten years have elapsed since February 24, 1996, which was the first departure date, and acquired permanent residency on February 27, 2006.

(10) On March 6, 2006, the Defendant applied for an extension of the period of overseas travel with the “acquisition of permanent sovereignty” (see, e.g., Supreme Court Decision 2006Du100, Aug. 18, 2017). The Commissioner of the Military Manpower Administration returned the application only once for reexamination of non-permission notification pursuant to Article 22(4) of the Directive on March 22, 2006 (No. 55 pages of evidence record).

① The Defendant filed an objection on March 27, 2006 on the measures to return on March 22, 2006, but was accused of the violation of Article 94 of the former Military Service Act on March 31, 2006 from the Commissioner of the Military Manpower Administration.

(12) As above, notification to the Commissioner of the Military Manpower Administration of the disapproval to the defendant shall be as follows:

Evidence 1 of the contents of the measures taken by the Military Manpower Administration to file an application for the number of votes contained in the main sentence, and ① an application for permission for extension of the period from January 20, 2016 (a disease) ① 25 pages 25 to the extent that it is difficult to return to the Republic of Korea on January 24, 2016, ② An application for reexamination (a disease) on February 22, 2016 (a disease) ② No. 23, 2016 (a) of the notification of non-permission as of February 24, 2016 (2) No. 2: No. 50 (a) 1-, and 1-B (a) of the notification as of March 22, 2006, the application for permission for extension of the period from March 22, 2006 (a share certificate) shall be rejected; and a request for reexamination of the period of no permission for extension of the period of No. 25 (25).

2) Around January 2006, the Defendant received a medical certificate from a physician of the United Kingdom that it is impossible for the Defendant to take a long-hour flight aircraft and at least two to three months of medical treatment (Evidence Record 2: 23, 28 pages).

3. Judgment on misconception of facts and misapprehension of legal principles

A. Whether there is a justifiable reason for the defendant not to return to Korea

1) The defendant's application for extension of the period of overseas travel on March 6, 2006, namely, the application for extension of the period of overseas travel on the ground of "acquisition of permanent sovereignty" is different from the application for extension of overseas travel on the ground of "treatment of disease", the defendant's first application for extension of overseas travel on January 20, 206, the application for reexamination on February 22, 2006, or the objection raised on February 23, 2006, namely, the ground for such application.

Therefore, it is unlawful for the Commissioner of the Military Manpower Administration to take measures to return the instant petition pursuant to Article 22(4) of the Directive on March 27, 2006, on the ground that the instant petition No. 2 was a request for reexamination of the same second time as the instant petition No. 1 and that the instant petition No. 2 was a request for reexamination.

2) However, the crime of violation of Article 94 of the former Military Service Act is punishable by a person who has obtained permission for overseas travel or permission for extension of the period permitted without justifiable grounds, and the lawfulness of the rejection disposition against the application for permission or extension is not a crime that constitutes a constituent element. Thus, it is unlawful to determine whether there is a justifiable ground for not having returned to Korea within the period (other than this, the crime under subparagraph 2 of Article 32 of the Act on Designation and Management of Development Restriction Zones (see, e.g., Supreme Court Decision 2017Do7321, Sept. 21, 2017); Article 78 (1) of the former Urban Planning Act (Amended by Act No. 4427, Dec. 14, 191); Article 92 of the same Act, which provides for a case where an order to reinstate under Article 30 (1) of the same Act is violated (see, e.g., Supreme Court Decision 200Do1481, Aug. 18, 1992);

3) Furthermore, we examine whether the Defendant did not return to the Republic of Korea within the permitted period with justifiable grounds.

① The Defendant’s first application and the second application are separate applications that differ from the grounds for the application, respectively.

The extension period of the Defendant’s overseas travel is still no change between the original date and the original date until December 31, 2005, and even if the Defendant was notified by the Commissioner of the Military Manpower Administration of the deadline for return from March 26, 2006 upon the Defendant’s application of Article 1 of the instant case, the term “overseas travel period” is not extended until March 26, 2006, but it is a kind of grace period to grant the time for return to the person liable for military service before the Commissioner of the Military Manpower Administration takes administrative measures, such as filing an accusation.

It is reasonable to view that the Defendant did not return to Korea until March 26, 2006, which is the grace period set by the Commissioner of the Military Manpower Administration after being notified of the rejection of the motion No. 1 for the instant application. The Defendant acquired permanent residence rights on February 27, 2006 and filed the instant application No. 2 for a new reason is based on a new ground after December 31, 2005, which is the extension of the initial overseas travel period, and even if the return of the instant application No. 2 was unlawful as seen in the foregoing subparagraph 1), it is not reasonable to consider the determination of justifiable grounds. The grace period cannot be granted to the case where a new application was filed for an extension due to a subsequent reason after the extension of the overseas travel period, and even if the new ground for an extension application was within the grace period following the previous legitimate application, the new application for extension will be subsequent to the extension period.

B. Whether the statute of limitations expires

① As long as the departure situation continues without obtaining permission for overseas travel or permission for extension thereof, it is reasonable to deem that the statute of limitations continues to run as long as the provision on the violation of Article 94(1) of the former Military Service Act provides that the period of extinctive prescription does not run as long as the overseas travel or the extension period has expired.

② Even if the statute of limitations is in progress from the period of overseas travel or the extension thereof, Article 253(3) of the Criminal Procedure Act provides that “the statute of limitations shall be suspended during the said period, if a criminal stays abroad for the purpose of escaping criminal punishment.” The legislative purport of the above provision is to properly realize the penal authority by preventing the criminal from running the period of stay abroad for the purpose of escaping criminal punishment (see Supreme Court Decision 2008Do4101, Dec. 11, 2008, Supreme Court Decision 2008Do4101, Dec. 11, 2008). Therefore, the term “where a criminal stays abroad for the purpose of escaping criminal punishment” as prescribed by the above provision includes not only the case where the criminal stays abroad for the purpose of escaping criminal punishment, but also the case where the criminal stays abroad for the purpose of escaping criminal punishment, and where the criminal continues to stay abroad for the purpose of escaping criminal punishment, including the case where the criminal stays abroad for the purpose of escaping criminal punishment outside Korea for the sole purpose of escaping criminal punishment from abroad.”

In light of the circumstances of this case, it is reasonable to view that the statute of limitations has been suspended until the period of stay abroad pursuant to Article 253(3) of the Criminal Procedure Act, inasmuch as the Defendant had an intention to escape criminal punishment clearly revealed the subjective intent of the offender who could not be compatible with the purpose of escaping criminal punishment. In light of the circumstances, etc. of this case, it is reasonable to deem that the statute of limitations has been suspended until the period of stay abroad.

C. Sub-committee

The judgment of the court below is just in its conclusion and there is no error of law in misunderstanding of facts or misunderstanding of legal principles as to the existence of justifiable reasons under Article 94 of the former Military Service Act.

4. Judgment on the assertion of unfair sentencing

A. The lower court rendered a sentence by taking account of the following: (a) if there was an objection to the rejection of the disposition to extend the period of overseas travel, the Defendant’s immediate return to Korea, and had sufficiently been given the opportunity to remedy the right through administrative litigation, etc. after the immediate return to Korea; (b) the Defendant returned home and stayed abroad for a period of ten years from the expiration of the permitted period; (c) the Defendant’s return to Korea after the age of thirty-five (35) years, which is the age of exemption from the duty of military service; (c) the Defendant appears to have failed to fulfill his duty of military service as a national of the Republic of Korea during a long-standing study life; and (d) the Defendant appears to have been given a attitude to voluntarily return to Korea and to assume the responsibility corresponding to his mistake.

B. Although the Defendant alleged that he had no intention to evade military service, the Defendant appears to have resided abroad with a view to escaping criminal punishment, and considering the fact that the Defendant had an intention to evade military service in the absence of the opportunity to relieve criminal punishment, as determined by the lower court, considering the fact that the Defendant had continued to evade military service in a foreign country although he had an opportunity

In addition, the defendant, who was enrolled in the executive branch of the executive branch of the Republic of Korea, has been enrolled in the executive branch of the United Kingdom, and the date of the expiration of the passport until December 31, 2005, had the date of expiration of the passport, and had to prepare for return to the Republic of Korea without registering the last semester after the expiration of the semester (section 28 of the trial record). The defendant at the time of expiration of the passport is unable to attend the school due to the expiration of the passport, and there is room for not to be subject to permission for extension under Article 147(5) of the former Military Service Act. Since the mother of the defendant is not residing in the permanent resident of France or the defendant who is enrolled in the UK, there is room for not to be subject to permission for extension under Article 147(5) of the former Military Service Act. The defendant is subject to the punishment of this case due to a mistake in failing to return to the Republic of Korea within the extended period without justifiable grounds, the defendant'

C. The lower court’s punishment is determined by taking account of all the above sentencing conditions, such as the above circumstances, and it cannot be deemed that it is too inappropriate to deem it inappropriate.

5. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-chul (Presiding Judge)

Note 1) An Act or subordinate statute refers to the Act or subordinate statute listed in the Annex.

Note 2) According to Section 8 of the Grounds for Appeal dated August 18, 2017, the UK may apply for permanent residence in a case where it lawfully stays in the UK for 10 consecutive years.

3) According to Article 23 of the Regulations on the Performance of Overseas Travel Affairs by Persons obligated to serve in the Military, with a view to preventing those who wish to voluntarily enlist among emigrants from being disadvantaged due to the performance of their duty of military service, such as loss of their status of stay, the “application system for enlistment, such as permanent residents, etc.” is operated.