Whether there is a crime of abandonment of duties in case an assistant military judicial police officer has been suspended while investigating a crime other than those prescribed in the Act on Special Measures for Crimes against Military Supplies

Where an assistant military judicial police officer designated by the chief of the district public prosecutor's office has suspended his duties while investigating a crime other than those prescribed by the Act on Special Measures for Crimes such as Military Supplies, etc.

Article 122 of the Criminal Act, Article 2 of the Act on Special Measures for Crimes Caused by Military Supplies, Etc.

Defendant

Attorney Jeong-hee (private), two Chang-gu (Korean),

High Military Court Decision 74 High Military Court Decision 23 delivered on March 15, 1974

The judgment of the court below is reversed, and the case is remanded to the Army, High School, and Military Court.

We examine part of the defense counsel's grounds of appeal.

The defendant does not submit an appellate brief.

The court below ruled as follows in determining the facts which are the grounds for rejecting the establishment of a legal crime.

In other words, since it is clear that judicial police officers cannot arbitrarily suspend investigation as to the abandonment of duties among the facts charged in the instant case, even if there is a provision that does not establish legal basis for the operation of the Seoggu Seoul District Military Supplies Control Commission, it is clear that the illegality is not removed. In addition, if Article 78 of the above provision provides that cases other than those requiring detention and those equivalent to 100,000 won or more are delegated to the standing committee, it can be seen that the pertinent investigation can be delegated to the standing committee. However, it is not a discretionary delegation of authority to arbitrarily suspend investigation, and it is merely a delegation of authority to only receive inspection reports and investigation results. Accordingly, the above argument is that the defendant cannot be accepted. According to the provision of Article 9 of the Act on the Persons Performing Duties of Judicial Police Officers and the Scope of their Duties, as well as Article 43 subparag. 1 and No. 46 subparag. 1 of the Act on the Special Measures for Military Supplies, the defendant who was designated as the chief of the District Public Prosecutor's Office of the Military Prosecutors's Office should take into account the military supplies of this case.

Nevertheless, it is difficult to avoid the misunderstanding of the legal principles of the Act on Special Measures for the Crimes of Military Supplies, etc. in light of the fact that the court below held that the defendant committed a crime of abandonment of duties in relation to this point.

Since the appeal is well-grounded in this point, the decision of the court below shall be reversed in accordance with Articles 438 and 439 of the Military Court Law, and the case shall be remanded to the High Military Court Council, which is the original judgment.

This decision is consistent with the opinions of the involved judges.

Justices Han-jin (Presiding Justice)