[1] The meaning of "defensive act" under Article 86 of the Military Service Act and the time when the execution thereof commences

[2] The case affirming the court below's determination that the principal offender was not guilty of aiding and abetting the principal offender's fraudulent act since he did not reach the stage of submitting a medical certificate for concurrent use to the competent Military Manpower Administration under Article 86 of the Military Service Act

[1] Article 86 of the Military Service Act / [2] Article 86 of the Military Service Act

[1] Supreme Court Decision 2005Do3065 Decided September 28, 2005 (Gong2005Ha, 1729) Supreme Court Decision 2005Do3240 Decided September 28, 2005, Supreme Court Decision 2005Do2200 Decided October 13, 2005

Defendant

Prosecutor

Seoul Central District Court Decision 2004No3878 Delivered on March 8, 2005

The appeal is dismissed.

1. Article 86 of the Military Service Act provides, “A person who deserts, absconds, or injures his body or commits a deceitful act with the intention of evading or evading the duty of military service or having the duty of military service reduced or exempted shall be punished by imprisonment with prison labor for not less than one year but not more than three years.” Here, “a deceitful act” refers to an act of evading the performance of, or having the duty of military service reduced or exempted, by deceiving the military administrative authority to have the duty of military service reduced or exempted, even though the act does not fall under any of the conditions for reduction or exemption of the duty of military service or does not fall under such physical condition. Thus, the act of deceiving the military administrative authority to have the duty of military service reduced or exempted shall be deemed to have reached the execution of the duty of military service only after having reached the stage of direct risk of evading the performance of the duty of military service and impairing the propriety of the military administration (see, e.g., Supreme Court Decisions 2005Do3240, Sept. 28, 2005).

As to the part of the facts charged in the instant case that aiding and abetting the act of fraud by the Nonindicted Party, who is a person to be enlisted in active service, pretended as having been suffering from kidy diseases, such as having a member undergo medical treatment as if he had been suffering from a disease due to kidy in the manner as indicated in its reasoning, the lower court determined that, insofar as the principal offender did not reach the stage of submission to the competent Military Manpower Administration by obtaining a certificate of military use by fraudulent means, the above act alone cannot be deemed to have led to the execution of “private act” as stipulated in Article 86 of the Military Service Act because it is difficult to deem that a failure to perform military service or that a direct risk of infringing the appropriateness of military administration has occurred, and therefore, this part of the facts charged that the Defendant

In light of the above legal principles and records, we affirm the above judgment of the court below as just, and there is no error of law such as misunderstanding of legal principles as to Article 86 of the Military Service Act, as otherwise alleged in the ground of appeal.

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

Justices Kim Yong-dam (Presiding Justice)