In a case where Defendant, who is a person eligible for separate call-up for social work personnel, was indicted for violating the Military Service Act on the ground that he did not enlist until January 15, 2014, 2014, after receiving a call-up notice of a social work personnel call-up notice on January 13, 2014, which was later than January 15, 2014, on the ground that he did not enlist until January 15, 2014, without justifiable grounds, the case holding that Defendant failed to respond to a call-up under Article 88 (1) 2 of the Military Service Act on the ground that he was served two days prior to the call-up notice, and the call-up notice was not issued before the call-up notice was included, but he could not have delayed enlistment until January 16, 2014 pursuant to Article 88 (1) 2 of the Military Service Act, on the ground that he could not give up enlistment or failed to postpone the call-up.

Articles 6(1) and 88(1)2 of the former Military Service Act (Amended by Act No. 12560, May 9, 2014); Articles 53(1) and (4), and 129(1) and (4) of the former Enforcement Decree of the Military Service Act (Amended by Presidential Decree No. 2720, Jun. 14, 2016)

Defendant

Prosecutor

Chuncheon District Court Decision 2014No837 decided December 15, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 88(1)2 of the former Military Service Act (amended by Act No. 12560, May 9, 2014; hereinafter “Military Service Act”) provides that a person who received a notice of convening a social work personnel call shall be punished by imprisonment for not more than three years, if he/she fails to comply with the call even three days after the call without justifiable grounds. Article 6(1) of the same Act provides that the director of a regional military manpower office shall serve a notice of imposing the duty of military service on a person liable for military service by mail, delivery method, or information and communications network. Article 53(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 2720, Jun. 14, 2016; hereinafter “Enforcement Decree of the Military Service Act”) provides that the director of a regional military manpower office shall serve a notice of convening a social work personnel call to him/her 30 days prior to the call period, notwithstanding paragraph (1) of the same Article.

Meanwhile, according to Article 129(1) and (4) of the Enforcement Decree of the Military Service Act, a person who is difficult to perform the duty of military service due to a disease may postpone the date of performing the duty of military service, and a person who intends to postpone the date of enlistment, etc. shall, in principle, submit to the director of the competent regional military manpower office a written application for postponement at least five days before the said date. Provided, That if there is no time to submit a written application for postponement due to a sudden occurrence of the

2. A. According to the reasoning of the lower judgment and the record, the Defendant enlisted for a call-up of public duty personnel around January 30, 2012 (the name was changed to social work personnel according to the amendment of the Military Service Act, December 4, 2013), and retired on the ground of falling short of education hours due to mination on February 17, 2012, and (2) on December 4, 2012, upon receipt of the notice of call-up of the public duty personnel service personnel around 14, 2013, the Defendant applied for the postponement of call-up due to disease, accompanied by a medical certificate for the use of the military service at the Gangwon District Military Manpower Office on January 4, 2013, and (3) the Defendant was separately entitled to call-up of a call-up of the public duty personnel service personnel service personnel service on January 11, 2014, and did not request the call-up of the military service personnel service personnel service personnel service at KRW 14,010.

B. According to the above facts, although the defendant decided not to enlist until January 16, 2014, which was before the expiration of 3 days from January 13, 2014, which is the call call, which is the call call, the defendant could not be issued a certificate of military use necessary for the call call prior to the call call, because the call call notice was served two days before the call call was not completed, and since the weekend was included, the defendant could not be issued a certificate of military service prior to the call call call call. The person in charge of the Gangwon District Military Manpower Office determined the last day on January 15, 2014, which can be delayed enlistment according to the schedule of the Military Manpower Administration and notified the defendant around 13:00, and the defendant could not have renounced or failed to postpone the call even though it was possible to delay enlistment until January 16, 2014, according to Article 88(1)2 of the Military Service Act, it is reasonable to deem that the defendant did not respond to the call prescribed in Article 88(1) of the Military Service Act.

Article 53(4) of the Enforcement Decree of the Military Service Act is in violation of the Constitution, and therefore, the reasoning of the court below on the premise that the service of notice of convening this case under the above provision is unlawful is inappropriate. However, the court below's conclusion that acquitted the defendant on the ground that the charges in this case constitute a case where there is no proof of a crime does not constitute a case where there is no proof of a crime

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)