[1] Whether the statute of limitations for a crime of violation of the Military Service Act due to a violation of a duty to notify a personal change shall commence from the expiration of 14 days under Article 40 of the Military Service Act (negative)

[2] The relationship between the violation of Article 92 (1) of the former Military Service Act and the violation of Article 92 (2) of the same Act

[3] The case holding that the act of having expert research personnel, etc., who were transferred to the Senior Research Personnel Service, engaged in any other field than the pertinent field at the time of transfer constitutes a violation of Article 92 (1) of the former Military Service Act

[1] In cases where expert research personnel or skilled industrial personnel are not engaged in the corresponding field of a designated entity at the time of transfer under Article 40 of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004), the duty to notify the director of the competent regional military manpower office of such fact within 14 days shall not proceed with the statute of limitations in which the situation where expert research personnel, etc. are not engaged in the corresponding field of the designated entity at the time of transfer

[2] The elements of a crime of violation of Article 92 (2) of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004) with the content of transferring expert research personnel, etc. to disguised service, and the content of a crime of violation of Article 92 (1) with the content of having a person under mandatory service as expert research personnel, etc. engage in an area other than the pertinent field of the designated entity at the time of transfer without justifiable cause. The legal interest protected by the two crimes is different, and there is a need to distinguish between the case of transfer of expert research personnel and the case of committing a violation

[3] The case holding that the act of having expert research personnel, etc., who were transferred to a senior position, engaged in a field other than the pertinent field of the designated entity at the time of transfer constitutes a violation of Article 92 (1) of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004)

[1] Article 40 of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004) / [2] Article 92 (1) and (2) of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004) / [3] Article 92 (1) of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004)

Defendant 1 and two others

Defendants

Attorneys Cho Young-do et al.

Seoul Eastern District Court Decision 2007No977 Decided January 24, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the first point (misunderstanding of the legal principles as to the statute of limitations)

The court below rejected Defendant 2 and 3’s assertion that the statute of limitations has expired on the part of the Defendants’ violation of their duty to notify of the fact to the director of the competent regional military manpower office within 14 days, in case where expert research personnel or skilled industrial personnel (hereinafter “technical research personnel, etc.”) are not engaged in the corresponding field of the designated entity at the time of their transfer under Article 40 of the former Military Service Act (amended by Act No. 7272 of Dec. 31, 2004; hereinafter the same shall apply).

In light of the records, the above judgment of the court below is justifiable. Contrary to the defendants' grounds of appeal, there were no errors in the misapprehension of legal principles as to the statute of limitations.

2. As to the second point (misunderstanding of legal principles as to interpretation of Article 92(1) of the former Military Service Act)

The lower court determined that the act of taking the Nonindicted Party, etc., who was disguised by the Defendants, engaged in an area other than the designated entity’s corresponding field at the time of incorporation, on the grounds that the elements of the crime of violation of Article 92(2) of the former Military Service Act and the elements of the crime of violation of Article 92(1) of the same Act, which provide that a person under mandatory service as expert research personnel, etc. shall be engaged in an area other than the corresponding field of the designated entity at the time of incorporation without justifiable grounds, are distinguishable from the protected legal interests of both crimes, and there is a need to distinguish between the act of transfer and the act of violation of duty to engage in the transfer

In light of the records, the above judgment of the court below is justifiable. There is no error in the misapprehension of legal principles as to the interpretation of Article 92 (1) of the former Military Service Act, as otherwise alleged in the ground of appeal by the defendant 2 and 3.

3. Conclusion

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

Justices Kim Ji-hyung (Presiding Justice)