병역법위반
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. The gist of the prosecutor’s appeal is that Article 21(2) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 27620, Nov. 29, 2016; hereinafter the same) cannot be deemed unconstitutional. Even if the family affairs are unconstitutional, Article 16(2) of the former Military Service Act (amended by Act No. 14183, May 29, 2016; hereinafter the same) delegates the director of the regional military manpower office to take a separate enlistment measure against a person subject to separate enlistment in active duty service to the director of the regional military manpower office under the former Enforcement Decree of the Military Service Act, which is a matter of determination of unconstitutionality through adjudication of unconstitutionality of the Constitutional Court. However, the court below judged Article 21(2) of the former Enforcement Decree of the
2. Determination
A. On August 6, 2016, the Defendant directly received the notice of enlistment in active duty service under the name of the director of the Gyeongnam Military Manpower Office in the name of Gyeongnam Military Manpower Office to the effect that “be enlisted in the Army 53 Team on August 16, 2016” in the Defendant’s residence located in the Busan Military District Office B building C, as a person subject to separate enlistment in active duty service.
Nevertheless, the defendant did not enlist without justifiable grounds until three days after the date of enlistment.
B. The lower court determined that Article 21(2) of the former Enforcement Decree of the Military Service Act, which provides for the reduction of the service period of a notice of enlistment for a person subject to separate enlistment in active duty service, violates the Constitution and the rule of law, and thus, is in violation of the Constitution. The notice of enlistment in active duty service to the Defendant by the director of the regional military manpower office in Gyeonggi-do is not served 30 days prior to the date of enlistment. Thus, the Defendant did not
Even if the defendant violated the Military Service Act, it cannot be established against the defendant.
C. Article 16 of the Military Service Act (amended by Act No. 14183, May 29, 2016) (1) provides that “The enlistment in active service shall be made.”