In a case where the defendant was indicted for violating the Military Service Act on the ground that he was found guilty on the ground that he had committed a fraudulent act for the purpose of evading military service or having been exempted from military service by being classified as a social work personnel subject to reduction of or exemption from military service due to the result of physical grade 4 after being classified as a person subject to enlistment in active duty service after being classified as a person subject to enlistment in active duty service on three occasions as a result of physical grade 3 as a result of the draft physical reexamination conducted thereafter, and as a result, he was classified as a person subject

In a case where the defendant was indicted for violating the Military Service Act on the ground that he was classified as a person subject to enlistment in active duty service after being classified as a person subject to enlistment in active duty service on three occasions after being classified as a result of physical grade 3 as a result of the draft physical reexamination conducted thereafter, after being measured at 171cc or 105cc or 105cc or more of kidy, and was classified as a person subject to physical grade 4 by intentionally adding the amount of meals to increase the amount of meals and classified as a person subject to social work personnel under class 4, thereby having committed a fraudulent act for the purpose of evading military service or having military service reduced or exempted, the case holding that the physical grade 4 was not guilty on the ground that the physical grade 161 to 203cc or more of 161 to 203cc or that the physical grade 16 to 35cc or more of 105cc or more in the draft physical examination conducted after the reexamination does not constitute a military service administrative authority to have military service reduced or exempted.

Article 86 of the Military Service Act, Article 325 of the Criminal Procedure Act

Defendant

Defendant

Freeboard and one other

Law Firm Tae Young, Attorney Jeon Jin-jin

Seoul Southern District Court Decision 2015 Height3901 decided March 17, 2016

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

From the time of elementary school to February 201, the Defendant entered a professional camping zone as a practice student status. However, around November 201, the Defendant was released from the club due to a shoulder injury, etc. Around March 2012, the Defendant was serving as a middle school camping room in the middle school from March 2012. When the Defendant has retired from his occupation for more than 20 years, the physical weight increased, and around 2013, the physical weight increased. The Defendant’s physical change was more than 3 km and the BM I index at the time of the draft physical examination was more than 35 km. The Defendant did not intend to increase the body weight by maintaining an excessive amount of meals, and the Defendant did not err by misapprehending the legal principles on fraud under Article 86 of the Military Service Act, and thus, the lower court convicted the Defendant by misapprehending the legal principles.

Even if the defendant's liability for violation of the Military Service Act is recognized, the defendant's act constitutes passive acts, and the defendant has served in good faith as public interest service personnel from January 2016, and there is no particular criminal record, and thus, the punishment sentenced by the court below is excessively high.

2. Determination

A. Summary of the facts charged in this case

On November 10, 2009, the Defendant: (a) received a draft physical examination from the Incheon regional military manpower office located in the Nam-gu Incheon regional military manpower office located in the Nam-gu Incheon regional military manpower office to be enlisted in active duty service; and (b) applied for postponement of enlistment three times from that time to December 2012; and (c) applied for a follow-up draft physical on the ground that he was injured and performed a surgery on a shoulder in around 201, which was a professional camping player; (d) on June 12, 2014, the kid in the draft physical conducted by the Incheon regional military manpower office was classified into 171cc and 105cc and 105cc and was classified as a subject of a kidy and heavy dysty measure; and (e) it was thought that the body’s body’s body’s body’s body’s body’s body’s body’s body’s body’s body’s body’s body’s body’s body’s body was judged 4.

Therefore, the Defendant intentionally intending to kill by means of increasing the amount of meals from around June 12, 2014. As a result of a kidney, kidy performed by the Incheon regional military manpower office on July 25, 2014, the physical weight decreased to 103 km, and as a result, was classified as the object of a re-explosion, kidying, and kidying in body, the Defendant intentionally kiddddying the amount of meals from that time to that time, and eventually, on October 8, 2014, as a result of a kidy and kidy fying performed by the said Incheon regional military manpower office, the Defendant was classified into 171 cm for the extension of the Defendant, and 106 km for the body grade 4 after being measured with 106 km for the physical grade. Accordingly, the Defendant committed fraudulent act that intentionally kills his body with the intention of evading military service or having military service reduced.

B. The judgment of the court below

The lower court recognized the Defendant’s violation of the Military Service Act on the grounds that it was recognized that the Defendant had maintained an excessive amount of meals for the reduction and exemption of his duty of military service at least in 2014 and attempted to increase his body.

C. The judgment of this Court

1) The burden of proving the facts charged in a criminal trial is to be borne by the prosecutor, and the conviction is to be based on the evidence of probative value, which makes the judge sure that the facts charged are true enough to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant is to be determined (see Supreme Court Decision 2001Do2823, Aug. 21, 2001, etc.).

2) According to the evidence duly adopted and examined by the court below, the defendant made a statement to the effect that he would evade or be exempted from military service due to the body of the defendant, such as posting a notice on his page "I would like to have caused a disturbance to the plan," "I would like to get off the plan," "I would like to get off the plan," "I would like to go further once more," and "I would like to go more than once," and in light of these circumstances, I would like to suspect that the defendant had had intention to be exempted from military service.

3) However, according to the following circumstances acknowledged by the records of this case, reasonable doubt exists as to whether the Defendant committed a fraudulent act with the intent to evade or reduce military service as stated in the facts charged, and there is no other evidence to prove the facts charged of this case.

① At the time of the draft physical examination on June 12, 2014, the Defendant stated that, after becoming aware of the fact that the above notice falls under class 4 of the physical grade subject to public service due to the weight from the Military Manpower Administration’s personnel at the time of the draft physical examination, he/she could take a large number of comments. In light of the contents of the Defendant’s comments on the Facebook, the Defendant’s contents of the above written objection cannot be ruled out to be true.

② According to the Rules of Inspection, such as physical examination of conscription (Ordinance of the Ministry of National Defense No. 670), the criteria for physical grade 4 shall be at least 161-203 cm for the extension of 161-203 cm below 16, or at least 35, and changes in the body, etc. of the defendant are as follows (where the original measurement value is separately confirmed, the original measurement value shall be stated in the overall title):

Of the table measurement dates contained in the main sentence, kg BMI index among the body of kidg kids in the main sentence, on November 17, 2009, 172 October 4, 2010, 172 171 (170.6) 105 (105.6) 35.9 July 25, 2014 (171.4) 103 (102.9) 103 (102.9) 35.28 October 17, 2014 (171.2) 106. 36. 106 (106.4. 106. 108. 25. 208 (1) 15. 205. 205. 28. 15. 2015 (1) 205. 18. 25. 2017. 2015 (1. 2. 15. 20. 15. 20. 15. 18. 201. 2015. 1. 204. 201. 201. 1. 204. 15. 201. 201. 201. 1. 1. 1. 201.

③ Article 86 of the Military Service Act provides, “Any 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 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, the term “defensive act” refers to an act of evading the performance of military service or causing physical conditions of having military service reduced or exempted. However, even though it does not fall under the conditions for reduction or exemption of the duty of military service or is not such physical condition, it refers to an act of deceiving the military administrative authority to be exempted from the duty of military service. Thus, it shall be deemed that the Defendant’s physical condition was not fulfilled only when he had taken the stage of having direct risk of evading the performance of military service and impairing the appropriateness of the military service, and it does not constitute a reduction or exemption of the duty of military service from among the military service (see Supreme Court Decisions 2005Do3240, Sep. 28, 2005; 2005Do15.).

4) Therefore, the judgment of the court below which found the defendant guilty on the ground that the facts charged against the defendant cannot be seen as having been proven without a reasonable doubt, is erroneous in the misapprehension of facts and the judgment of the court below which affected the conclusion of the judgment.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged against the defendant is as stated in 2.A. The facts charged falls under a case where there is no proof of a crime for the same reason as stated in 2.C., and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment against the defendant pursuant to Article 58(2) of the Criminal Act

Judges Kang Tae-hun (Presiding Judge) (Presiding Judge)