Military civilian employee, refusal of a breath alcohol test

1. Public officials, suspended sentences, and 'automatic retirement'

When a person with the status of a public official or military civil servant becomes involved in a criminal case and faces trial, they confront a very serious issue different from ordinary people. That is the 'automatic retirement' provision.

Article 10, item 3 of the current Military Civil Servant Personnel Act (군무원인사법) stipulates that a person who falls under the disqualification grounds of article 33 of the State Public Officials Act (국가공무원법) cannot be appointed as a military civil servant. And article 69, item 1 of the State Public Officials Act stipulates that a public official who falls under the disqualification grounds of article 33 during service 'automatically' retires.

Among these, the problematic provision is article 33, item 4 of the State Public Officials Act: 'a person who has been sentenced to a suspended sentence of imprisonment without labor or a heavier punishment and for whom two years have not passed since the end of the suspension period.' In other words, if a military civil servant is tried for a criminal offense and a judgment of a suspended sentence of imprisonment without labor or heavier is confirmed, they automatically lose their military civil servant status at that moment.

This is completely different from disciplinary procedures such as dismissal or removal through a disciplinary committee. The mere confirmation of the court's judgment automatically effects retirement under the law, and there is virtually no way to contest it (see Supreme Court Decision 2014Du43806, decided December 29, 2016).

Therefore, in criminal cases involving public officials and military civil servants, avoiding a suspended sentence and receiving a fine is absolutely important for maintaining one's job, just as much as avoiding imprisonment.

Recently, I would like to introduce a successful case in which attorney Joo Youngjae directly represented a military civil servant client who, after receiving a suspended sentence of imprisonment in the first trial and facing automatic retirement, was able to have the sentence reduced to a fine on appeal and maintain his military civil servant status.

2. Overview of the case

Client: Grade 6 military civil servant A

First instance court and case number: First Regional Military Court 2023GoOOO

Criminal facts in the first instance:

Violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents (causing injury): striking a pedestrian on a crosswalk

Violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents (causing injury): collision while making a U-turn in violation of a signal and crossing the center line

Violation of the Road Traffic Act (refusing a breath alcohol test): immediately after the above accident, refused a breath alcohol test three times (had a criminal record of a fine for drunk driving in 2013)

First instance judgment: 1 year imprisonment, 2 years suspended sentence

The client received a suspended sentence of imprisonment in the first instance. If that judgment were confirmed as is, the client would be in a desperate situation of losing his military civil servant job, which he had worked at faithfully for a long time, in an instant. Accordingly, attorney Joo Youngjae took on the defense in the appeal (Seoul High Court 2023NoOOOO) and actively argued that the sentencing was unfair.

3. Attorney's core arguments and defense strategy

In the appellate trial, attorney Joo Youngjae intensively argued the following points, appealing that the first instance sentence was excessively heavy and unfair.

A. The 'substantial harshness' of the suspended sentence on the client

Although a suspended sentence avoids immediate imprisonment, for the client, who is a military civil servant, it results in the irreversible consequence of 'automatic retirement'. This is effectively a deprivation of occupation and is excessively harsh compared to the responsibility for the criminal act.

When determining a sentence, the court must consider not only the gravity of the crime but also all sentencing conditions, including the defendant's age, character, environment, and circumstances after the crime. In particular, if the defendant is a public official, the disadvantage to their status upon confirmation of a sentence of imprisonment without labor or heavier is a very important sentencing factor.

B. Appealing for favorable circumstances of the client

Attorney Joo Youngjae actively presented that the client acknowledged all his mistakes and deeply regretted them, that he had reached a settlement with the victims of the two traffic accidents and they did not wish for his punishment, and that his prior drunk driving record was from 10 years ago.

In addition, he presented specific materials showing that the client had served the nation for a long time as a military civil servant and had received a good reputation from colleagues, and persuasively conveyed that it would be too harsh for his lifelong efforts to come to nothing because of this incident.

4. Outcome of the judgment: reversal of the first instance, fine of 20,000,000 Korean won

As a result, the Seoul High Court accepted the arguments of attorney Joo Youngjae, reversed the first instance judgment (1 year imprisonment, 2 years suspended sentence), and sentenced the client to a fine of 20,000,000 Korean won.

Thus, the client escaped the critical crisis of losing his military civil servant status and was able to maintain his position and continue working.

5. Conclusion

When a person with the status of a public official or military civil servant becomes involved in a criminal case, it can become a matter involving not just the level of punishment but their entire career and life. Even crimes that commonly occur in daily life, such as drunk driving or traffic accidents, can have fatal consequences.

If you find yourself in a similar crisis, it is most important to establish an optimal strategy with the help of legal experts from the early stages of the case to avoid the worst outcome of 'automatic retirement'. I hope you will act wisely so that a moment's mistake does not cause you to lose what you have built with your whole life.