The establishment of a crime of evading the service of public duty personnel and the starting point of statute of limitations.

Article 89-2 subparagraph 1 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005) provides that a crime of evading the service of public duty personnel under Article 89-2 subparagraph 1 of the former Military Service Act constitutes a single crime for at least eight days in total continuously or intermittently committed without justifiable grounds. The statute of limitations shall run from the time of the final act of evading the service among the acts of evading the service of the above whole.

Article 89-2 subparag. 1 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005), Article 249(1)5 of the Criminal Procedure Act

Defendant

Prosecutor

Suwon District Court Decision 2005No2503 decided August 31, 2005

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

The grounds of appeal are examined.

Article 89-2 Subparag. 1 of the former Military Service Act (amended by Act No. 7541 of May 31, 2005; hereinafter the same) provides that "public interest service personnel shall be punished by imprisonment for not more than three years with prison labor for a total period of not less than eight days, or a person who has deserted from their service or has failed to serve in the field concerned, for a total period of not less than eight days without justifiable grounds." The crime at issue constitutes one crime of a total of not less than eight days, which continuously or intermittently occurred without justifiable grounds, and the statute of limitations should run from the completion of the last act of the removal from service among the acts of removal from service

According to the evidence adopted by the court below, the defendant, as a public duty personnel of Incheon Metropolitan City, was accused of having been suspended from prosecution on the ground that he had been discharged from service for the aggregate 8 days from January 2, 2001 to June of the same month (five days), on the 18th day of the same month, on the 13th day of the same month (one day), on the 10th day of the same month, on the 13th day of the same month (one day), on the 10th day of the same month, and on the 14th day of the same month, and on the 10th day of the same month from January 2 to 18th day of the same month, on the ground that he had been discharged from service for 20 days in total by the head of the relevant service agency, on the 10th day of the 20th day of the same month and 10th day of the same month (the 14th day of the same month), on the 10th day of the same month without justifiable grounds.

From January 2, 2001 to June 13, 200, the above act of evading service for the total of 10 days from November 12, 2001 to October 25, 2004 constitutes a single crime, and the statute of limitations for the above crime begins from October 25, 2004 where the act of evading service was performed. Meanwhile, since the statutory penalty for the above crime is imprisonment for not more than three years, the statute of limitations period under Article 249 (1) 5 of the Criminal Procedure Act is three years, and the prosecution of this case filed on February 14, 2005 had been initiated before the expiration of the statute of limitations period from October 25, 2004 to October 25, 2004.

Therefore, in different opinions of the court below, the court below maintained the judgment of the court of first instance which acquitted the public interest service personnel on the ground that part of the facts charged in this case constitutes the grounds for sentencing of acquittal due to the completion of the statute of limitations, and the remaining facts do not meet the elements of the indictment, which constitutes the grounds for sentencing of innocence under the former part of Article 325 of the Criminal Procedure Act. It is erroneous in the misapprehension of legal principles as to the gender of the crime of violation of Article 89-2 subparag. 1 of the former Military Service Act

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)