Desertion from military service
The client passed the conscription medical as fully fit but developed a herniated disc from the training and heavy work at a front line infantry unit. The unit commander ordered the client excused from duties that strained the back, but the unit's officers treated the client as a malingerer and kept assigning that work. Worn down, the client went out for a hospital appointment and went home instead of returning, and was charged with desertion.
Conscript soldierHerniated discFront line unitDesertion chargeTreated as malingering
Sentence suspended (선고유예)Criminal
This image is for illustrative purposes and is not a photo of an actual case.
Desertion and suspension of sentence
The crime of desertion, which we commonly call 'running away from the military', is the act of leaving one's unit or duty with the intent to evade military service. In peacetime, desertion carries a statutory penalty of imprisonment for not less than 1 year and not more than 10 years. It is a very serious crime because there is no fine option and there is a minimum prison sentence.
Meanwhile, suspension of sentence is a procedure in which, when sentencing a person to imprisonment or imprisonment without labor for not more than 1 year, suspension of qualifications, or a fine, the court considers the circumstances and suspends the pronouncement of the sentence. A case receiving a suspended sentence is deemed to be dismissed if, within 2 years from the date of the suspension, the person does not receive a sentence of suspension of qualifications or heavier for another crime, which means it does not remain on the criminal record.
Such suspension of sentence is exceptionally pronounced only when the nature of the crime is very light, and it is the most favorable judgment for the defendant among guilty verdicts.
Recently, attorney Joo Youngjae achieved a suspension of sentence in a desertion case, which we will introduce.
Facts of the case
The defendant (the client) was healthy enough to receive a grade 1 on the physical examination at enlistment, but after being assigned to a front-line infantry unit, he developed a herniated disc due to excessive training and hard labor during his service.
As the defendant continuously complained of back pain, the unit commander ordered that he be exempted from tasks that strain the back and registered him as a candidate for unit reassignment.
However, despite the unit commander's order, the non-commissioned officers of the unit believed the defendant was faking illness and assigned him to tasks that strained his back, and they even looked askance at his outings to visit a civilian hospital.
Eventually, feeling distrust of the officers and disillusioned with military life, the defendant took the opportunity of an outing for a civilian hospital visit to go straight home and did not return to the unit. He was arrested by unit officers who had searched for him about 27 hours later.
Attorney Joo Youngjae's response
Since it was clear that the defendant had deserted, and the only hope was to seek leniency, attorney Joo Youngjae actively argued to the court that the defendant had no choice but to desert due to the circumstances, and that the defendant had intended to return voluntarily.
Court's decision
The court accepted attorney Joo Youngjae's arguments on sentencing and, exceptionally, pronounced a suspension of sentence for the defendant.
The judgment became final when the prosecutor waived appeal.
Before you read
The results shown here depend on the facts and evidence of each case and the laws in force at the time. Every case is different, so the outcome of one case does not predict or guarantee the outcome of another. This page is not legal advice. For your own case, please confirm through a consultation.
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