Cases where the correction of the family register is recognized as fraudulent act for the purpose of evading call;

If a person who completed a reserve lower-ranking officer course under the Decree on the Implementation of Student Military Training while attending a teachers' college and was appointed as a lower-ranking officer in reserve service was falsely corrected in 1953 in 1974 in the year of birth, the enlistment is exempted and the duty of military service is also reduced to six years, which constitutes a fraudulent act under Article 82(1) of the Military Service Act.

Article 82(1) of the Military Service Act

Defendant

Prosecutor

Attorney Lee Im-soo (Korean)

Daegu High Court Decision 79No572 delivered on October 11, 1979

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The prosecutor's grounds of appeal Nos. 1 and 2 are also examined.

According to the reasoning of the judgment of the court of first instance that maintained as it is, the court below acknowledged the fact that the defendant violated the Act on Special Measures for the Punishment of Crimes in Violation of the Military Service Act among the charges against the defendant, and recognized the fact that his actual birth year was 1953, as stated in the indictment, notwithstanding the fact that the actual birth year was 1957 for the purpose of evading convocation as stated in the indictment, but the defendant, like the defendant, has a duty to attend school education for five years, a person appointed as a reserve staff member after completing the courses for reserve staff member under the Decree on the Implementation of Student Training among the teachers' colleges as the defendant, has a duty to attend school education for five years, and a supplementary call is exempted if he has discharged such duty, but the duty to serve as a reserve staff member is discharged, and even if the defendant renounced his duty to fill the prescribed duty and corrected the family register falsely, such act does not affect the defendant's duty to convene a correction of the family register as stated in the above Article 18 (2) of the Military Service Act.

However, the duty of military service for reserve junior officers is exempted from the duty of military service under Article 47 (2) of the Military Service Act, and Article 8 (1) 1 of the Military Personnel Management Act, and until December 31 of the year in which they reach 45 years of age. The duty of military service is divided into active duty and practical duty as stipulated in Article 36 of the Military Service Act and the call as stipulated in Article 53 of the same Act, and the defendant's call for supplementary duty of reserve junior officers is convened to serve in actual duty under Article 57 of the same Act. However, such duty of military service is exempted from the duty of military service under Article 34 of the same Act, and the duty of military service is exempted from the duty of military service under Article 30 of the same Act, and the defendant is also exempted from the duty of military service by correcting the family register as stated in the indictment, and it cannot be viewed as fraudulent act, and thus, it cannot be viewed as a violation of Article 8 (1) of the Act on Special Measures for Punishment, etc. of the Military Service Act.

In addition, it is difficult for the court below to avoid criticism that there is a misunderstanding of the legal principles of concurrent crimes and ordinary concurrent crimes, and the crime of false entry of the original copy of notarial deed in the judgment of the court of first instance and the crime of false entry of the original copy of notarial deed in the judgment of the court of first instance constitutes several crimes, and even though it is deemed that there are several crimes, it is difficult for the court below to avoid criticism that there is a misunderstanding of the legal principles of concurrent crimes and ordinary concurrent crimes, and the crimes of false entry of the original copy of notarial deed and the remaining crimes are concurrent crimes at the time of first trial, so the above misunderstanding of legal principles cannot be deemed to have

Therefore, this appeal is with merit, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Han-jin (Presiding Justice)