The Army Chief of Staff's order of return to a person who escaped from military service will be "justifiable order" under Article 47 of the Military Criminal Law.

The Army Chief of Staff's order of return to a person who escaped from military service will be "justifiable order" as stipulated in this Article.

Article 47 of the Military Criminal Act

Supreme Court Decision 68Do660 Decided July 16, 1968

Defendant

Military prosecutor;

Supreme Court Decision 68 High Military Port725 delivered on October 8, 1968, such as the Army of the Republic of Korea and the Army of the second instance.

We reverse the original judgment.

The case shall be remanded to the Army, High School, and Military Council.

The grounds of appeal for the military prosecutor of the prosecution division of the High Army Law Association shall be deemed to be the grounds of appeal.

In light of the reasoning of the judgment below, the order of the Army Chief of Staff to surrender himself to the nearest military police unit located in each district from February 1, 1967 to the 28th of the same month may be punished for not returning to the military unit, as in this case, by a person who is unable to be punished due to the expiration of the statute of limitations for the crime of escaping from military service, and if the above order of return was issued from time to time by a person who was absent from military service or other crime, the crime of escaping from military service or other crime may be exempted from punishment regardless of the expiration of the statute of limitations, so it would result in suspending the effect of Article 284 of the Military Court Act, which provides for the statute of limitations for the system of the statute of limitations, and thus, the above order of return to military service cannot be deemed as a "justifiable order" under Article 47 of the Military Criminal Act, regardless of its legitimacy.

However, according to the records of this case, the Army Chief of Staff promulgated the so-called return order at the time of January 26, 1967. In light of the above contents, the above order is a legitimate order under Article 47 of the Military Criminal Act issued by an immediate superior officer who is the defendant and the defendant as the person who received the active duty in the military service. Thus, the court below shall not be exempted from destruction because it is obvious that the judgment contrary to the Supreme Court's precedents affected the conclusion of the judgment.

Therefore, the original judgment is reversed, and the case is remanded to the High Military Court for further proceedings. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Judge Do-dong (Presiding Judge) of the Supreme Court