Defendant

Defendant

Kim Jong-Un (Court of Prosecution) and Nos. (Court of Justice)

Attorney Lee Dong-hoon et al.

Incheon District Court Decision 2013Gohap6750 Decided November 14, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

1. Summary of grounds for appeal;

A. Legal principles

Although the Defendant was suffering from extreme depression and depression to the extent that he attempted suicide several times, the Defendant filed an accusation immediately against the Defendant as a violation of the Military Service Act without actively endeavoring to identify the Defendant’s causes of absence from work, or without endeavoring to take after-the-job illness. Therefore, the Defendant has “justifiable cause” under Article 89-2 subparag. 1 of the Military Service Act, and thus, the Defendant ought to be acquitted.

(b) Mental illness;

The Defendant, due to extreme mental illness, stress arising from work, and family environment, had been considerably deteriorated at the time of committing the instant crime, at the time of his/her ability to discern things or make decisions.

C. Unreasonable sentencing

The punishment of the court below (six months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misapprehension of legal principles

According to the records of this case, the defendant was urged to attend the military for treatment of 10: 20 days after receiving text messages from the military physical examination, but he could not receive military service normally, and he could make it difficult for the defendant to find out studies and job. From September 9, 2011, the defendant started to work as public duty personnel at 00 high schools belonging to Incheon Metropolitan City Office of Education without any contact, and the defendant sent text messages to the defendant and sent them to 3 days without any contact but without any contact with the defendant on July 19 to July 24, 2013. Although the defendant did not attend the work, the defendant sent them to 1:3 days after he was urged to attend the work on July 29, 2013, and the defendant did not have any contact with the defendant on 1:3 days after he was urged to attend the work without any contact. However, the defendant did not have any contact with the defendant on 20 days after he was urged to attend the work.

In this context, the monetary statement or text statement submitted by the Defendant cannot be identified solely on the basis of the monetary statement or text statement submitted by the Defendant. The point at which Nonindicted 6, the Defendant’s punishment, asked the Military Manpower Administration for the suspension of medical care or service of public duty personnel, etc. on December 25, 2013. The point at which the Defendant asked the contact address of the person in charge of the duty or asked for the method of after-the-spot treatment, was after the escape from the service in this case after October 2, 2013, and Nonindicted 3, the person in charge of the Defendant’s service, from September 201 to July 2012, who was the Defendant, was suffering from depression because of a large number of words, and the small number of words, was insufficient from the fact that Nonindicted 3, the Defendant was suffering from depression for a considerable period of time from the Defendant’s disease without any justifiable reason, and the Defendant’s assertion was also recognized as having no reason for a considerable period of time from around 10 and 2015.

B. As to the assertion of mental disorder

According to the evidence duly adopted and examined by the lower court and the trial court, the Defendant was given medical treatment from August 2007 to △△△△△△, and the Defendant attempted to give instructions on September 19, 2013, and was also rescued to police officers. The Defendant is in a mental state such as serious depression, unstable emotional distress, non-constience, mental physical disorder, social degradation, heavy personal relationship degradation, and lack of overall desire, and it can be acknowledged that at the time of the instant crime, the Defendant appears to have been in a state of undermining the ability to discern things and make decisions due to depression. Considering the method and background of the instant crime and the Defendant’s criminal records before and after the instant crime, it is reasonable to view that the Defendant, at the time of the instant crime, had the ability to discern things or make decisions with weak intent due to depression disorder.

3. Conclusion

Therefore, the defendant's argument of mental disability is reasonable, and the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and the following decision is again rendered after pleading.

The summary of the facts constituting the crime and the evidence acknowledged by this court is as follows. The defendant in the second sentence of the judgment below added "in the state that the defendant lacks the ability to discern things or make decisions due to depression, etc." and added "the statement consistent with the point of the judgment of the court below in the mental emotions prepared by the appraiser 5 of the 1..........." It is identical to each corresponding column of the judgment of the court below. Thus, it is accepted by Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Subparagraph 1 of Article 89-2 of the Military Service Act

1. Statutory mitigation;

Articles 10(2) and (1) and 55(1)3 of the Criminal Act.

The Defendant, who was sentenced to a suspended sentence for violating the Military Service Act in the same form as the instant case, was not sentenced to a judgment of suspension of execution and committed the instant crime on a 14-day basis. Moreover, the Defendant’s duty to serve in the military is the most fundamental and unnecessary obligation of all citizens for maintaining the existence and security of the Republic of Korea, and thus, ought to strictly punish the Defendant’s act of leaving his service due to his absence to work at the workplace without justifiable grounds.

However, in full view of various circumstances, including the Defendant’s age, environment, family relationship, occupation, and circumstances leading to the instant crime, and the sentencing conditions specified in the records and arguments, such as the fact that the Defendant had no criminal records except for the criminal records of the violation of the Military Service Act for which the said judgment became final and conclusive, and the fact that the Defendant was suffering from a mental disorder due to depression, etc., resulting in the instant crime in a state of mental disorder, etc.,

Judges Cho Jong-ok (Presiding Judge)