logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
arrow
무죄집행유예
고등군사법원 2009. 11. 6. 선고 2009노96 판결
[무단이탈][미간행]
Escopics

Written Roster

Appellant. An appellant

Defendant

A postmortem inspection tube;

Captain Korean Commercial Type

Defense Counsel

Law Firm Jae-ju, Attorneys Min Hong-chul

Pleadings

Mads

Judgment of the lower court

32. Military Court Decision 2009Da1 decided April 16, 2009 (Convening Jurisdiction, April 17, 2009)

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

The 18-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

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

Of the facts charged of this case, the verdict of innocence is not guilty.

Reasons

1. Summary of grounds for appeal;

The summary of the defendant's appeal is as follows: (a) on April 25, 2007; (b) on May 3, 2007; (c) on June 19, 207; (d) on June 20; (e) on July 5, 207; (e) on July 6, 2007; (e) on July 11, 2007; (f) on July 11, 2007; (f) on August 28, 207; (f) on August 20, 208; (f) on August 21, 2008; (f) on August 21, 2008; and (f) on August 5, 2008; and (f) on July 20, 207; (f) on July 208, 2008, the court below found the defendant guilty of return of a military unit without permission, in violation of the rules of evidence.

2. Determination

A. Summary of the facts charged

The Defendant is a person who works as the head of the Dong at ○○ Military Service Corps ○○○○ Group, the second unit ○2 unit ○2 unit, and the Defendant is obligated to work in the Dong group from 09:00 to 18:00 each day except for holidays, unless the commander's permission (order of leave) has been granted.

The defendant, up to 18:00 on January 10, 2007, had to work in the substitute office located in Seo-gu, Seo-gu, Daejeon, Seo-gu, Seo-gu, Daejeon, but on the same day 13:06 on the same day, the defendant left ○ golf course located in Seo-gu, Seo-gu, Seo-gu, Seo-gu, Seo-gu, Seo-gu, Daejeon, with no permission from a commander at least 48 times between January 10, 2007 to November 5, 2008.

본문내 포함된 표 순번 일시 요일 장소 무단이탈시간 1 2007. 1. 10. 13:06 수요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 4시간 2 2007. 1. 22. 12:33 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 5시간 3 2007. 2. 12. 12:54 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 5시간 4 2007. 2. 14. 13:06 수요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 4시간 5 2007. 3. 7. 08:00 수요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 4시간 6 2007. 3. 13. 07:31 화요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 3시간 7 2007. 4. 18. 12:25 수요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 5시간 8 2007. 4. 25. 05:59 수요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 2시간 9 2007. 5. 3. 06:14 목요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 2시간 10 2007. 6. 19. 06:12 화요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 2시간 11 2007. 6. 20. 07:17 수요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 3시간 12 2007. 6. 25. 06:00 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 2시간 13 2007. 7. 5. 06:42 목요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 2시간 14 2007. 7. 6. 06:24 금요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 2시간 15 2007. 7. 9. 13:07 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 4시간 16 2007. 7. 11. 06:06 수요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 2시간 17 2007. 8. 6. 12:25 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 5시간 18 2007. 8. 9. 07:07 목요일 충북 청원군 (상세주소 4 생략) ⊙⊙ 골프장 약 3시간 19 2007. 8. 28. 13:23 화요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 4시간 20 2007. 8. 30. 07:36 목요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 3시간 21 2007. 9. 6. 11:54 목요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 5시간 22 2007. 9. 13. 06:25 목요일 충북 청원군 (상세주소 4 생략) ⊙⊙ 골프장 약 2시간 23 2007. 9. 21. 12:03 금요일 충북 청원군 (상세주소 4 생략) ⊙⊙ 골프장 약 5시간 24 2007. 10. 8. 12:59 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 5시간 25 2007. 12. 3. 12:20 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 5시간 26 2008. 1. 7. 13:00 월요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 4시간 27 2008. 1. 21. 13:11 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 4시간 28 2008. 1. 24. 12:54 목요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 5시간 29 2008. 1. 30. 11:41 수요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 5시간 30 2008. 2. 11. 12:48 월요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 5시간 31 2008. 2. 18. 13:05 월요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 4시간 32 2008. 2. 27. 08:02 수요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 4시간 33 2008. 3. 17. 07:32 수요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 3시간 34 2008. 3. 27. 13:10 목요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 4시간 35 2008. 3. 31. 13:22 월요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 4시간 36 2008. 4. 16. 07:47 수요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 3시간 37 2008. 4. 18. 06:54 금요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 2시간 38 2008. 5. 22. 13:12 목요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 4시간 39 2008. 6. 2. 06:40 월요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 2시간 40 2008. 6. 24. 13:20 화요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 4시간 41 2008. 7. 3. 11:54 목요일 청주시 상당구 (상세주소 3 생략) ★★ 골프장 약 5시간 42 2008. 7. 21. 06:04 월요일 충북 청원군 (상세주소 4 생략) ⊙⊙ 골프장 약 2시간 43 2008. 8. 11. 11:37 월요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 5시간 44 2008. 9. 3. 13:34 수요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 4시간 45 2008. 9. 12. 06:40 금요일 충남 계룡시 (상세주소 1 생략) ○○ 골프장 약 2시간 46 2008. 10. 2. 12:33 목요일 충남 계룡시 (상세주소 1 생략) □□ 골프장 약 4시간 47 2008. 10. 8. 12:39 수요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 5시간 48 2008. 11. 5. 07:04 수요일 대전 유성구 (상세주소 2 생략) △△ 골프장 약 3시간

B. The judgment of the court below

The court below found the defendant's statement, the current use of each golf course, the order of leave, and the game records (based on the visitors) of stadiums, and convicted him of all of the above 48 without permission.

C. Judgment of the court below

(1) On March 7, 2007, April 18, 2007; on April 25, 2007; on June 19, 2007; on June 25, 2007; on July 25, 2007; on August 6, 2007; on Aug. 6, 2007; on Aug. 28, 2007; on Sep. 13, 207; on Sep. 21, 2007; on Jan. 24, 2008; on Apr. 31, 2008; on Apr. 18, 2008; on each of the following occasions, on Aug. 28, 2007; on Aug. 201, 2007; on Aug. 21, 2008; on Aug. 28, 2008;

With respect to the above unauthorized escape of each of the above illegal use of a golf course, the date and time of reservation can be recognized on the date of withdrawal from each of the above illegal use of a golf course according to each of the entry of the current status of the golf course use, and, unless the contractor changes the reservation or cancels the reservation, golf-friendly facts can be recognized on the relevant date and time according to the current status of the use of the golf course. In other words, if the defendant did not actually play golf on the relevant date, the current status is not stated in the current status of the use of the golf course, and the probative value of the itself as stated in the current status of the use

In addition, according to the evidence and records duly adopted and examined by the court below and the court below as to the leave order, the person with authority to issue the leave order to the same ledger of the reserve forces is the head of the relevant female group. Although the person with authority to issue the leave order applies for leave in a regional group or group, the person in charge of the reserve forces applies for leave by wire to the regional group or group, and takes them into account in the group, and the person is issued the leave order after a reply to the group, the person in charge of the order is not issued, the fact that the corrective order is issued and the order is not issued retroactively even after the date of leave, and the fact that the leave order is not issued even if the date of leave changes by oral consent after the date of leave (in case of the petition leave, it is relatively higher than that of the person having authority to issue the leave order). However, it cannot be denied that there was no permission of the commander, and considering the lack of the military prosecutor's permission through the corrective order or retroactive order, there is no proper order that the leave order is issued.

According to the evidence duly adopted and examined by the court below and the court below, according to the current status of the use of each golf course (the evidence No. 2 pages of the evidence record) and the order of leave (the evidence No. 6 pages of the evidence record), the defendant is admitted to have golf-friendly without the fact that the order of leave is issued, and the certificate of the accompanying person movement written by Non-Indicted 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 is not admissible because the military prosecutor consents to the use of evidence, and the judgment of the court below does not contain any errors in the misapprehension of the rules of evidence or in the misapprehension of the rules of evidence. Accordingly, the defendant's assertion at this point is without merit.

(2) On February 14, 2007, September 6, 2007, and August 11, 2008, with respect to the deviation without permission

According to the evidence and the records duly adopted and examined by the court below and the court below, according to the current status of use of each golf course (Evidence No. 2, the evidence record No. 2), and the leave order (Evidence No. 6, the evidence record No. 6, the evidence records) it is insufficient to objectively prove the fact that the defendant suspended the movement on the above date and returned to the early military unit, as alleged by the defendant, as alleged by the Administrator of the Korea Meteorological Administration, in view of the data on the Korea Meteorological Administration and the letter of confirmation prepared by Nonindicted 13, that the defendant visited the office, and returned the vehicle, and there is no other supporting evidence, and the judgment of the court below is no other violation of the rules of evidence. Accordingly, the defendant's assertion at this point is without merit.

(3) On January 10, 2007; October 8, 2007; December 3, 2007; February 18, 2008; and June 24, 2008 without permission

According to the evidence and records duly adopted and examined by the court below and the court below, according to the current status of use of each golf course (Evidence No. 2, the evidence record No. 2), and the order of leave (Evidence No. 6, the evidence records) (Evidence No. 6, the defendant is acknowledged to have a golf-friendly relationship without a fact that a leave order was issued. According to Non-Indicted 14, 15, 16, 17, and 18 of the witness witness at the court below, the defendant stated that he was returned to a military unit immediately after calculating her green volume on the above date, and that the defendant stated that approximately 15-20 minutes are used for a motor vehicle from ○○ golf course or a golf course to the reserve force unit unit unit unit for which

Article 79 of the Military Criminal Act refers to a relatively short period of secession, and whether it is a temporary secession is not a matter of time and place concept, but rather a deviation to an extent that it would interfere with the performance of duties imposed on him/her due to his/her escape regardless of the distance of secession (see Supreme Court Decision 67Do734, Jul. 25, 1967). This is a matter of concrete determination in accordance with social norms. Therefore, if the above golf course was in the process of calculating her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her. her her her her. her her.

(4) As to the renunciation of permission on March 13, 2007; May 3, 2007; June 20, 2007; July 1, 2007; August 9, 2007; August 30, 2007; March 12, 2008; and September 12, 208

원심 및 당심에서 적법하게 채택·조사한 증거들과 제반기록에 의하면, 각 골프장 이용현황(증거기록 제2면 이하) 및 휴가명령(증거기록 제6면 이하)에 의하면 피고인은 휴가명령이 발령된 사실 없이 일응 골프를 친 사실이 인정되나, 예비군 동대장의 근무시간은 09:00인 사실, 위 일자에 골프를 치기 시작한 시간대가 06:00 내지는 07:00인 사실, 피고인이 출근시간에 맞추기 위해 9홀 이하로 골프를 치고 사무실로 출근했다고 진술한 사실, 피고인이 ○○ 골프장 또는 △△ 골프장에서 피고인이 근무하는 예비군동대까지 자동차를 이용하는 경우 약 15~20분, ★★ 골프장 내지 ⊙⊙ 골프장의 경우에는 약 30~35분 각 소요된다고 진술한 사실, 당심의 증인 공소외 17· 19· 15에 의하면 위 일자에 피고인과 함께 골프를 쳤고, 피고인은 출근을 위해 9홀을 치거나 그전에 중단하고 먼저 출발하였다고 진술한 사실 등이 인정된다.

In light of the facts acknowledged as above and the fact that the defendant's golf-friendly with the former working hours, generally takes approximately two hours in the case of nine holes games, and takes approximately ten minutes in the case of golf course completion until the beginning of the golf course, it can be recognized in light of the empirical rule as it appears that the defendant arrived at the unit of the reserve forces working for the defendant until 09:00, the starting time of the golf course is 06:00, and it can be recognized as having reached the unit of the reserve forces working for the defendant, and that the defendant's act of golf on September 12, 2008 does not fall under a deviation without permission, but it was somewhat insufficient to prove that the above golf-related period of the defendant's working for the reserve forces was 0:0 am 07:0 am 13,007, June 207, 2007; and that there was a lack of evidence to prove that the above golf-related period of the defendant went to his/her working for the reserve forces without permission.

Therefore, the conviction of the court below is erroneous in the misconception of facts due to the incomplete hearing or the violation of the rules of evidence, and the defendant's assertion is justified.

3. Conclusion

Therefore, the lower judgment is entirely reversed in accordance with Article 431 and Article 414 subparag. 11 of the Military Court Act, and the record of the instant case is deemed sufficient to read the party members. Therefore, the lower court directly rendered a judgment through pleadings pursuant to Article 435 of the same Act.

Criminal facts

The Defendant is a person who works as the head of the Dong unit in the 000 volunteer group of the 000 volunteer group of the 000 volunteer group of the 000 volunteer group of the 000 volunteer group, and the Defendant is obligated to work in the same volunteer group from 09:00 to 18:00 on a daily basis except for holidays, unless the commander grants permission (

From January 22, 2007, the Defendant had to work in a subordinate office located in Seo-gu, Seo-gu, Daejeon, Seo-gu, Daejeon, by 18:00, but on the same day, left a place of work without permission of a commander 35 times between January 22, 2007 and November 5, 2008, such as leaving a subordinate office to teach golf and leaving a place of work for about five hours at a golf course located in Daejeon, Daejeon, Seo-gu, Daejeon, Daejeon, Daejeon, Daejeon (Seoul, 2:3 omitted).

Summary of Evidence

Each fact in the ruling,

1. Any statement made by the defendant in compliance with this Act in this court;

1. Each entry that conforms to the current status of use of each golf course, orders for leave, and the details of games in each stadium (based on the visitors in the stadium);

Since all of them can be recognized, there are proof.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 79 (Selection of Imprisonment or Imprisonment)

2. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravated Punishment of Concurrent Crimes as to Crimes of Desertion without Permission on January 22, 2007)

3. Inclusion of days of pre-trial detention;

Article 57 of the Criminal Act

4. Suspension of execution;

Articles 62(1) and 51 of the Criminal Act (as seen in the Grounds for Punishment)

Parts of innocence

Of the facts charged in the instant case, the summary of the facts charged regarding the non-permission of the court on January 10, 2007; March 13, 2007; May 3, 2007; June 20, 2007; July 11, 2007; August 9, 2007; August 30, 2007; October 8, 2007; Act No. 8781, Dec. 3, 2007; Act No. 8852, Feb. 18, 2008; Act No. 8857, Mar. 12, 2008; Act No. 8857, Jun. 24, 2008; Act No. 8857, Sep. 12, 2008; Act No. 8837, Oct. 2, 2008>

Grounds for sentencing

According to the evidence duly adopted and examined by the lower court and the trial court and all the records, the Defendant is obliged to strictly punish the Defendant in light of the following: (a) the Defendant 35-time golf without permission from the commander of the affiliated military unit for about two years; (b) a civilian military employee also has a strong duty to ensure national security by complying with the command system of the superior uniform and by securing preparedness; and (c) the majority of civilian military employees and the military employees who faithfully work due to the unauthorized Desertion of the instant case and the people’s trust and expectation to the majority of the civilian military employees and the military service employees who faithfully work for the pertinent period.

However, unlike the judgment of the court below, it is difficult to fully assume the defendant's responsibility for the failure of partial unauthorized transfer, and according to the commander's opinion, it is written that the defendant faithfully performs his duties and wishes to take the action on this issue, taking into account the following: (a) the unauthorized transfer of this case was the first offender who has no record of criminal punishment or disciplinary action other than this case; (b) his own crime is closely against the State and the Gun for about 30 years including active duty service; (c) the defendant has been dedicatedly worked for the State and the Gun for about 30 years, including active duty service; and (d) the failure to properly manage the leave of the reserve forces; and (e) according to the commander's opinion, it is written that the defendant faithfully performed his duties

It is so decided as per Disposition for the above reasons.

【Crime List omitted】

Supreme Court-Colonel Kim Young-young (Presiding Judge)

The presiding judge is unable to affix his/her signature and seal due to transfer of military judge Kim Young-young

arrow