Defendant 1 and two others

Defendants

Park Ho-sung

Attorney Park Tae-con et al.

Seoul Eastern District Court Decision 2007Ra1540 Decided September 28, 2007

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant 2 and 3’s assertion of misapprehension of legal principles

(1) From June 5, 2003, Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), from around July 5, 2003, Nonindicted Party 2, and from around September 26, 2003, Nonindicted Party 3 did not engage in the field belonging to each designated entity from around September 26, 2003. Even if Defendant 2 and Defendant 3 are acknowledged to have the duty of notification, Article 40 of the Military Service Act that provides for the duty of notification of personal information stipulates that a skilled industrial personnel fails to engage in the field corresponding to the designated entity at the time of the transfer of the skilled industrial personnel, the notification to the head of the competent regional military manpower office within 14 days. Thus

In addition, Article 92(1) of the Military Service Act provides that the statute of limitations shall run from the time when the above non-indicted 1 et al. did not engage in the field concerned to the designated entity.

Thus, the violation of each of the Military Service Act should be acquitted because the statute of limitations has expired.

(2) In a case where Article 92(1) of the Military Service Act does not allow a person transferred normally to work in the field of designated entity, Article 92(2) of the same Act applies exclusively to a case where a person transferred normally from the beginning was illegally incorporated into the designated entity. Since the Defendants were unlawfully incorporated Nonindicted 1, 2, and 3 for the purpose of having another company work from the beginning, the Defendants fall under Article 92(2) of the same Act and cannot be said to have committed an offense under Article 92(1) of the same Act (if such interpretation is not made, the Defendants are bound to perform their duty of notification, which is in violation of Article 12(2) of the Constitution stipulating the principle of prohibition of self-donation.

Therefore, the facts charged that Article 92(1) of the Military Service Act was violated should be dismissed or sentenced to not guilty on the ground that the facts constituting an offense are not included.

B. Defendants’ assertion of unreasonable sentencing

The sentence imposed by the court below (the 2 years of the suspended execution of Defendant 1 and the 5 million won of the fine, the 1 year of the suspended execution of April and the 5 million won of the fine) is too unreasonable.

2. Determination

A. As to the assertion of misapprehension of legal principles

(1) As to the assertion that the statute of limitations has expired

Article 40 of the Military Service Act provides that the head of a designated entity shall notify the head of the competent regional office of manpower administration within 14 days in cases where the technical research personnel or skilled industrial personnel (hereinafter “technical research personnel, etc.”) are not engaged in the field concerned of the designated entity at the time of their transfer. In light of the purport of the provision, the duty to notify the head of the competent regional office of personnel administration within 14 days shall not be extinguished upon the expiration of 14 days prescribed by the above provision, but the duty to notify the head of the competent regional office of personnel administration shall continue to exist as long as the technical research personnel, etc. continue to engage in the field concerned of the designated

In addition, Article 92(1) of the Military Service Act provides that an employer shall be punished in cases where the employer fails to perform his/her duty on the premise that he/she has the obligation to have technical research personnel, etc. engage in the relevant field of designated entity. In light of the purport of the above provision, an act that does not engage in the relevant field has the nature of continuous crime, and thus, an act that does not engage in the relevant field has the nature of continuous crime, so long as it does not engage in the relevant field without justifiable

Therefore, the statute of limitations on the violation of the Military Service Act due to a violation of a duty to notify a personal change or a violation of a duty to engage in a duty to engage in a duty to engage in a duty to engage in a personnel change or a violation of a duty to engage in a duty to engage in a duty to engage in a duty to engage in a duty to engage in a relevant field shall not be deemed to have run from the expiration of the 14 days period under Article 40 of the Military Service Act,

(2) As to the assertion that Article 92(1) of the Military Service Act applies only where a person who was enrolled normally does not engage in the designated entity’s field concerned.

Article 36, Article 37, Article 38, and Article 38-2 of the Military Service Act provide that any person who is under mandatory service as technical research personnel shall be transferred to a designated enterprise through the transfer of technical research personnel to a service. Articles 39, 40, 41, and 42 provide that any person shall be assigned to a service of technical research personnel through the transfer of technical research personnel, etc., and accordingly, Article 92 (2) of the Military Service Act provides that any employer shall be punished by imprisonment for not more than three years if he commits an unlawful act in connection with the transfer of technical research personnel under Article 36. Article 92 (1) of the Military Service Act provides that any person who is under compulsory service as technical research personnel shall be punished by a fine not less than two million won but not more than 20 million won if he fails to be assigned to a designated enterprise, and that any former person shall not be deemed to have been removed from the former part of the elements of the military service Act in consideration of such unlawful act as well as any other unlawful act that the former person may be assigned to a pertinent area.

In light of the literary interpretation and purport of the provision of the above-mentioned legal provisions, the legal interest protected by the law, and the form of action, it is reasonable to view that unlawful acts related to entry into the Military Service Act and acts of violation of duty in the Military Service Act are in a substantive concurrent relationship as separate crimes (see Article 12(2) of the Constitution of the Republic of Korea to guarantee the right to refuse to make statements by protecting the human rights of criminal suspects or defendants as a fundamental right more preferentially than the national interest of discovering substantive truth or realizing specific social justice, which is the purpose of criminal procedure, thereby guaranteeing human dignity and value, and to eradicate coercion and coercion of non-human confession. Thus, ordering an employer who committed unlawful acts related to entry into the Military Service Act to give notice of personal information may not be deemed to force non-humanly an employer to make a statement unfavorable to himself, and therefore, it cannot be deemed to violate Article 12(2) of the Constitution that provides for the principle of prohibition of self-contribution (see Supreme Court Decision 2004Do5494, Dec. 24, 200

B. Regarding the assertion of unfair sentencing

Although the duty of military service is the most fundamental requirement for the existence of the nation's community, it is necessary to ensure equality in the duty of military service and effectiveness in the military service system by holding the responsibility strictly for the act of corruption such as this case.

In this case, in order to supplement the expert research personnel, etc. who will serve in their designated enterprises, the Defendants made efforts to secure business interests with excellent labor force at low cost by repeating the acts of incorporating them into a disguised association operated by the Defendants, as in the time of original trial, in order to recruit their own enterprises, as a consequence of the operation of the designated enterprises. The crime of this case requires strict punishment in that it is a crime that may have a significant influence on the Republic of Korea by encouraging the evasion of military service, and further, that it is a crime that has committed a crime that leads to a brush of military service evasion to many people who have performed or are performing the military service implicitly.

In addition, considering the background, motive, and consequence of the crime shown in the records of the instant case, the frequency of the crime, the mutual relationship between the Defendants, the age of the Defendants, character and conduct, family relationship, and social environment, the sentence of the lower judgment is not heavy.

3. Conclusion

Since the defendants' appeal is without merit, it is all dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jae-jin (Presiding Judge)