[1] The meaning of "physical damage" for the purpose of evading or exempting military service duty under Article 86 of the Military Service Act

[2] Whether Article 140 of the Regulations on Inspection of Physical Examination, etc. for Military Service, which is the Ordinance of the Ministry of National Defense delegated by Article 12 (4) of the Military Service Act, "the degree and evaluation criteria of illness and mental disorder" in attached Table 2 is a provision beyond the limit delegated by the Military Service Act (negative), and whether Article 86 of the Military Service Act is established in a case where a person who has the purpose of evading or exempting military service receives a letter by using this provision (affirmative)

[3] The case reversing the judgment of the court below which held that the act of administering a literature alone cannot be deemed as "physical damage unless there is a merger certificate, infection or mental disability", or "the physical damage" is caused, by deeming that Article 140 (1) of the Rules on the Inspection of Physical Examination, etc. for Military Service was invalid beyond the limit delegated by the Military Service Act

[1] Article 86 of the Military Service Act provides that "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 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." Thus, the elements of the crime are satisfied when the offender escaped, injures his whereabouts, injures his body, or commits a deceitful act for the purpose of evading or exempting the duty of military service. It is clear that the act of crime includes all other deceptive acts with the purpose of evading or exempting the duty of military service, including escape, hiding, or physical damage. In addition, the act of crime does not include any other deceptive act with the intention of evading or exempting the duty of military service, including a case where the act of escape, hiding, or attempting to commit a deceitful act, among the various types of acts among the elements of the crime, it is not a crime of sex, that is, where the act is a permanent, temporary, or actually includes a result of evading or exempting the duty of military service."

[2] Article 140 of the Regulations on Inspection of Physical Examination, etc. for Military Service, which is the Ordinance of the Ministry of National Defense delegated by Article 12 (4) of the Military Service Act, does not deviate from the limits delegated by the Military Service Act. In addition, even if the above provisions are not effective to the general public and the court, if a person who has the purpose of evading or exempting the military service intends to achieve the purpose by making a letter using the provisions actually in force as a standard for physical examination determination, barring any special circumstance, a violation of Article 86 of the Military Service Act is established.

[3] The case reversing the judgment of the court below which held that the act of administering a sentence alone cannot be deemed as "physical damage unless there is a merger certificate, infection or mental disability", since it is deemed that Article 140 (1) of the Rules on the Inspection of Physical Examination, etc. for Military Service No. 140) was invalid beyond the limit delegated by the Military Service Act

[1] Article 86 of the Military Service Act / [2] Articles 12(4) and 86 of the Military Service Act, Article 11 [Attachment 2] [Attachment 3] Articles 12(4) and 86 of the Military Service Act, Article 11 [Attachment 2] of the Regulations on Inspection of Physical Examinations, etc. for Military Diseases

[2] Supreme Court Decision 2003Do6286 Delivered on December 26, 2003

Defendant

Prosecutor

Attorney Go Jong-hee

Jeju District Court Decision 2003No452 delivered on December 4, 2003

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

Article 86 of the Military Service Act provides that a person who deserts, absconds, or injures his body or commits a deceitful act shall be punished by imprisonment with prison labor for not less than one year but not more than three years, with the intention of evading military service or having military service reduced or exempted. Thus, the elements of a crime include all other deceptive acts with the intention of evading, evading, or exempting military service, in addition to escape, saving his whereabouts, or impairing his body, or committing a deceitful act with the intent of evading or exempting the duty of military service. Thus, it is evident that the act of committing a crime include all other deceptive acts with the intention of evading, evading, or exempting military service, in addition to escape, saving his body, or impairing his body.

The concept of "physical damage", which is one of the types of acts, does not correspond to the concept of "injury that harms the completeness of the body or harms the physiological function," but includes the act of artificially manipulating the physical change to fall under the grounds for evasion or reduction of the duty of military service.

In addition, Article 12 (4) of the Military Service Act [Attachment 2] [Attachment 2] of the Regulations on Inspection of Physical Examination for Military, etc., which is the Ordinance of the Ministry of National Defense delegated by Article 12 (4) of the Military Service Act, does not deviate from the limits delegated by the Military Service Act (see Supreme Court Decision 2003Do6286, Dec. 26, 2003). In addition, if a person who has the purpose of evading or exempting the military service intends to achieve the purpose by making a letter using the provision that is actually implemented as the basis for physical examination determination, unless there are any special circumstances, if he/she intends to achieve the purpose by making a letter with the purpose of evading or exempting the military service, then a violation of Article 86 of the Military Service Act is established.

In this case where the defendant was a person who had a letter with the intention of evading, evading, or evading military service, the court below held that the meaning of physical damage among the above elements of military service is limited to the act of extinguishing or reducing the ability to cope with military service by changing his body, health degree badly, or manipulating the state of illness or mental or physical disorder, on the premise that Article 140 of the above Rule is deemed as a invalid provision beyond the limit delegated by the Military Service Act. The court below held that the mere fact that the letter is administered alone cannot be deemed as "physical damage" unless there is a merger, infection, or a mental disorder.

Ultimately, the court below erred by misapprehending the opinion of the Supreme Court based on the above legal principles, or by failing to exhaust all necessary deliberations on special circumstances that cannot be followed by the legal principles in this case, and it is obvious that the error affected the conclusion of the judgment.

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new judgment. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)