Supreme Court: "Suspension of Statute of Limitations for Overseas Illegal Stay and Military Service Evasion by International Students"

Guilty in First Trial → Dismissed in Second Trial → Reversed and Remanded in Third Trial
'Violation of Overseas Travel Permission Obligation' under Military Service Act is an Instant Crime
Recognized as 'Purpose to Avoid Criminal Punishment,' Statute of Limitations Suspended

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] A man in his 40s who returned to Korea after reaching the age exempting him from military service, having overstayed his permitted overseas travel period while studying in the United States as a teenager and thus illegally residing abroad, has been punished for violating the Military Service Act.

Lower courts had conflicting rulings regarding the statute of limitations for the crime of 'violation of overseas travel permission obligation' under the Military Service Act, but the Supreme Court has now presented a clear standard through this case.

The Supreme Court's Second Division (Presiding Justice Min Yoo-sook) announced on the 20th that it overturned the original acquittal ruling for A (45), who was indicted for violating the Military Service Act, and remanded the case to the Daejeon District Court.

An acquittal ruling is a final judgment that terminates the litigation process without determining guilt or innocence when criminal procedural requirements are lacking, such as when a confirmed judgment already exists or the statute of limitations has expired.

The court stated, "The lower court judged that the statute of limitations for the crime was not suspended because there was no evidence that the defendant was abroad to avoid criminal punishment," and added, "This judgment reflects a misunderstanding of the law regarding the suspension of the statute of limitations and a failure to conduct necessary hearings," explaining the reason for overturning and remanding the case.

A left for the United States in 1992 at age 14 and lived there. From age 18, when he was classified as a first-class national service candidate, he obtained 'overseas travel extension permission' from the Military Manpower Administration according to the Military Service Act at the time, with four extensions granted, each lasting one to two years.

Article 70, Paragraph 1 of the Military Service Act (Permission and Cancellation of Overseas Travel) stipulates that military service candidates aged 25 or older must obtain permission from the head of the Military Manpower Administration to travel abroad.

Paragraph 3 of the same article states that if a person who has received permission for overseas travel finds it difficult to return within the permitted period, they must obtain an extension or new permission from the Military Manpower Administration at least 15 days before the expiration of the period, or by January 15 of the year they turn 25 if they left before turning 25.

If a person departs without such permission to evade or reduce military service obligations, stays abroad without permission, or fails to return within the permitted period without justifiable reasons, they are subject to imprisonment from one to five years under Article 94, Paragraph 1 of the same law (at the time of this case, punishable by up to three years' imprisonment under the Military Service Act).

A stayed in the United States beyond the final overseas travel permission expiration date of December 31, 2002, without any further extension. The Military Manpower Administration filed charges against A in April 2003 for violating the Military Service Act.

About two years later, around 2005, A's visa expired. Having to discontinue his studies due to the lack of a visa, he lived illegally in the U.S. and returned to Korea in 2017 at age 41, after surpassing the age of exemption from military service at 36, and was immediately prosecuted.

The first trial recognized A's violation of the Military Service Act and sentenced him to 10 months in prison with a three-year probation.

However, the verdict was overturned in the second trial.

The appellate court ruled that the statute of limitations for A's violation of the overseas travel permission obligation had expired and issued an acquittal ruling.

The court cited Supreme Court precedents, judging that the crime of violating the overseas travel permission obligation under the Military Service Act is an instant crime that is established and completed immediately when a person fails to obtain an extension and does not return within the permitted period, specifically 15 days before the expiration of the overseas travel permission period.

In contrast, the prosecution argued that this crime is a 'continuing offense,' like unlawful confinement, where the criminal act continues until the crime ends, so the statute of limitations should start when the person returns after staying abroad without permission. However, this was not accepted.

The court reasoned that the penal provision punishes failure to return within the permitted period but does not include failure to return after the permitted period as part of the crime.

In other words, the statute of limitations began on December 31, 2002, the expiration date of the last permission period, and expired three years later, so the prosecution filed in December 2017 should have been dismissed.

The Supreme Court agreed with the appellate court that the violation of the overseas travel permission obligation is an instant crime and that the statute of limitations starts from the expiration date of the last permission period.

However, the Supreme Court ruled that because A had the 'purpose of avoiding criminal punishment,' the statute of limitations was suspended, making the prosecution valid.

Article 253, Paragraph 3 of the Criminal Procedure Act states, "If the offender is abroad to avoid criminal punishment, the statute of limitations is suspended during that period."

The court explained, "The legislative intent of Article 253, Paragraph 3 of the Criminal Procedure Act regarding the suspension of the statute of limitations is to prevent the statute of limitations from running during the period when the offender is abroad, effectively evading the jurisdiction of Korean courts, thereby enabling punishment and proper enforcement of criminal law."

It added, "Therefore, the 'purpose of avoiding criminal punishment' stipulated in the provision is not limited to being the sole purpose of staying abroad but is sufficient if it is included among multiple purposes for staying abroad. If the offender's stay abroad was a means to avoid criminal punishment, it can be considered that there was a 'purpose of avoiding criminal punishment,' and unless there is clear objective evidence showing a subjective intention incompatible with this purpose, the 'purpose of avoiding criminal punishment' continues during the period abroad."

Finally, the court concluded, "There is room to recognize that among the defendant's purposes for staying abroad was the purpose of avoiding criminal punishment for this crime, and no circumstances incompatible with this are apparent."

The court cited as grounds that ▲ A left for study and stayed in the U.S., obtained overseas travel permission from the Military Manpower Administration upon turning 18 and being classified as a first-class national service candidate, and received four extensions, so he should have known that further extensions were required to continue staying abroad but stayed beyond the final expiration without extension ▲ The Gwangju-Jeonnam Regional Military Manpower Administration sent two overseas travel non-return notices to A's guarantor, his maternal grandfather, after the expiration date ▲ After his visa expired and he had to discontinue studies, he remained illegally in the U.S. until April 18, 2017, well past the age of exemption from military service at 36 (November 15, 2012).

A Supreme Court official said, "There was no unified view among lower courts on when the statute of limitations starts for crimes like this, but this ruling clarifies that it is the 'expiration date of the overseas travel permission period,' which is significant."

This content was produced with the assistance of AI translation services.