[1] The meaning of "justifiable orders or rules" under Article 47 of the Military Criminal Act

[2] The case holding that in case where a unit within 20 km of a bit electric wire used privateization in violation of the Enforcement Rule of the Military Security Services which prohibits the use of privateization, it does not constitute a violation of an order under Article 47 of the Military Criminal Act

[1] In light of the principle of no punishment without the law and the unique nature of the authority to receive military service, the term "reasonable order or rule under Article 47 of the Military Criminal Act" refers to an institution in charge of the authority to receive military service, an order issued by the National Assembly, which is a legislative institution, concerning the important and physical specific matters in the process of military traffic, which are interpreted as delegated by Article 47 of the Military Criminal Act, and issued with regard to the actual contents of punishment, which is a legislative matter, and the determination of the general rules for military personnel's daily behavior, etc.

[2] The case holding that where a unit within 20 km electric wires used privateization in violation of the Enforcement Rule of the Military Security Services which prohibits the use of privateization, it does not constitute a violation of an order under Article 47 of the Military Criminal Act

[1] Article 47 of the Military Criminal Act / [2] Article 47 of the Military Criminal Act, Article 102 (6) 3 of the Enforcement Rule of the Military Security Services Act (Ordinance of the Ministry of National Defense No. 633 of August 23, 199)

[1] Supreme Court Decision 84Do1329 delivered on September 25, 1984 (Gong1984, 1755) Supreme Court Decision 88Do1667 delivered on September 12, 1989 (Gong1989, 1525)

Defendant

Military prosecutor;

Attorney Park Jong-chul

High Military Court Decision 2002No35 delivered on February 26, 2002

The appeal is dismissed.

The court below found that the defendant violated Article 102 (6) 3 of the Enforcement Rule of the Military Security Services (Ordinance No. 633 of the Ministry of National Defense, Aug. 23, 199) that prohibits the defendant from possessing and using personal telephones within 20km south of the military wire without permission, and thus, violated the legitimate order of the Minister of National Defense, the order or rule under the Military Criminal Act that violates the order under the Military Criminal Act shall be limited to only the facts charged in this case that the defendant can be punished by including the violation of the order under the Criminal Act, which is the general order or rule governing the daily life of the military personnel, on the premise that the violation can not be seen as being included in the violation of the order under the Criminal Act, since the above order or rule governing the daily life of the military personnel is the form of the order of the Ministry of National Defense, and all the persons subject to the order are physically contained in the military, and even if so, all the acts subject to the order cannot be directly related to the order or all of the regulations directly related to the order.

In light of the special nature of the principle of legality and the right to receive military service, the term "justifiable order or rule under Article 47 of the Military Criminal Act" refers to an order issued by an institution in charge of the right to receive military service, which is an institution delegated to the National Assembly under Article 47 of the Military Criminal Act with regard to important and physical specific matters in the process of military traffic, which are interpreted as delegated by the legislative institution, and essentially refers to an order falling under the actual contents of punishment, which is a legislative matter, and matters that are set forth in the general rules of conduct by military personnel, etc. (see Supreme Court Decision 84Do1329, Sept. 25, 1984, etc.).

In light of the above legal principles and records, the recognition and judgment of the court below is just, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to orders and rules in violation of orders.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)