Article 72 (1) 1 of the Detailed Regulations on Military Administration of September 1, 1974 provides that convicted prisoners (including those suspended from execution) and repeated offenders shall be excluded from enlistment: Provided, That convicted prisoners resulting from military service offenders shall be enlisted in the army. This is merely an administrative instruction on the active duty personnel plan according to the supply and demand situation, and thus, shall not be enlisted in the active duty service for those who have been sentenced to imprisonment or imprisonment without prison labor for not less than three years under Article 33-3 of the Military Service Act: Provided, That this provision shall not apply in a case where the sentence is less than three years after the reduction or exemption, or the execution of the sentence is postponed, although there is no express basis in the Military Service Act and the Enforcement Decree of the same Act, and according to the judgment of the first instance court maintained by the court of first instance, the defendant was sentenced to imprisonment with prison labor for not less than two years and suspension of qualifications for two years at the Jeonju District Court on August 18, 197 and was not subject to a justifiable order on August 16, 197, 1978.

The court below held that, while maintaining the judgment of the court of first instance on July 11, 1975, a convicted prisoner who was sentenced to a punishment for not less than 6 months but less than 3 years in relation to the requirements of a private teaching institute under the Military Administration Act as the head of the Military Manpower Administration, the defendant's argument that the above enlistment order against the defendant was lawful since the defendant did not comply with the so-called enlistment order of this case and the defendant's argument that the above enlistment order of this case was not legitimate, is not a ground for misunderstanding the legal principles as to the defendant's assertion that he was subject to criminal punishment under the former part of Article 72 (1) 1 of the Enforcement Rule of the Military Administration Act, and that the criteria for the disposal of whether the inmate was subject to enlistment in active service is subject to the discretion of the military administrative authority in accordance with the Presidential Emergency Decree No. 9, and therefore, the detailed implementation rules as to the defendant's enlistment order of this case for the defendant cannot be deemed null and void.

Therefore, the defendant's appeal without the necessity of judgment on the remaining grounds of appeal is with merit in this respect, and the judgment of the court below is reversed and the case is remanded to the Gwangju High Court. It is so decided as per Disposition by the assent

Justices Lee Il-young (Presiding Justice)