[1] Whether Article 24(1) and (2) of the Enforcement Decree of the Military Service Act, and Article 36(1)2 of the Rules on Duties of Active Duty Service are invalid in violation of Article 88(1) of the Military Service Act as a mother corporation (affirmative)

[2] The case holding that there is a justifiable ground under Article 88 (1) of the Military Service Act for the defendant's challenge to enlistment

[1] Article 88(1) of the Military Service Act, which is a punishment law for a person evading enlistment, provides that a person who has received a notice of enlistment in active service shall be punished if he does not enlist within five days from the date of enlistment without justifiable grounds. Thus, a person who fails to enlist within five days from the date of enlistment shall not be punished only where justifiable grounds exist, but it is evident that a person who did not enlist within five days from the date of enlistment (hereinafter referred to as a "person who did postponed enlistment") shall not be punished regardless of justifiable grounds. Article 24(1) of the Enforcement Decree of the Military Service Act limits a person who can enlist within five days from the date of enlistment to a person who was unable to enlist on the date of enlistment due to natural disasters, traffic congestion, or other unavoidable reasons, and Article 88(1) of the same Act provides that a person who has received a notice of enlistment in active service shall not be subject to enlistment in active service without any legal grounds and Article 88(2) of the same Act provides that the person who has delayed enlistment shall not be subject to the duty of enlistment within the date of enlistment.

[2] The case holding that there are justifiable grounds under Article 88 (1) of the Military Service Act, since the defendant visited the Military Manpower Administration on the third day from the date of enlistment, and the indication of intention of enlistment shall be deemed as a report of delayed enlistment, and the public officials in charge of the Military Manpower Administration, who received a report of postponed enlistment, refused such cooperation to the defendant based on the illegally established rules for enlistment in active duty service, and the defendant who did not receive the pertinent official documents and military service records from the Military Manpower Administration could not have delayed enlistment, and the defendant could not have received the pertinent official documents and military service records from the Military Manpower Administration, on the ground that the defendant's evasion of enlistment was caused by the cause

[1] Article 88(1) of the Military Service Act, Article 24(1) and (2) of the Enforcement Decree of the Military Service Act, Article 36(1)2 of the Regulations on the Establishment of Active Duty Service / [2] Article 88(1) of the Military Service Act, Article 24(1) and (2) of the Enforcement Decree of the Military Service Act, Article 36(1)2 of the Rules on the Establishment of Active Duty Service Act

Defendant

Attorney A (Korean National Assembly)

Seoul District Court Decision 2003No5150 Delivered on August 20, 2003

Supreme Court Decision 2003Do5365 Delivered on December 26, 2003

The defendant shall be innocent.

1. Summary of the facts charged in this case

The facts charged of this case against the defendant is that "the defendant is a person subject to enlistment in active duty service, and around September 6, 2002, the defendant's office located in Dobong-gu Seoul Metropolitan Government from September 23, 200 to September 13:00 of the same year, received a written notice of enlistment under the name of the director of the Seoul Regional Military Manpower Office, stating that he will enlist in the 35 group located in Seocheon-gu Seoul Metropolitan City, Seocheon-gu, Seocheon-gu, Seoul, Seoul, but will not enlist until September 28, 2002 without justifiable reasons."

2. Facts of recognition;

In full view of the statements and records in the trial records of the defendant in this court, the statements made by the witness C and the non-indicted in this court, the statements made by the defendant at the prosecution, the police, the statements made by the defendant, the non-indicted and the non-indicted, the statements made by the defendant and the non-indicted, C and D at the prosecution, the following facts can be recognized:

A. On September 6, 2002, the Defendant received the written enlistment notice from the director of the Seoul regional military manpower office from the head of the Seoul regional military manpower office to 13:00 of the same month through the Nonindicted Party, who was the mother of the Defendant, to enlist in the 35 company group located in Songcheon-dong, Seocheon-gu, Seoul. However, from the 23:00 of the same month, the Defendant did not enlist in the above 35 company group until the 35th day of the same month, and the Defendant did not enlist on the 28th day of the same month after

B. On the 23th day of the same month, the defendant was drafted and submitted to the Military Manpower Administration by the conscription 2 of the Seoul Military Manpower Administration (hereinafter referred to as the "Military Manpower Administration") and the staff of the Seoul Military Manpower Administration by not later than the date of enlistment, but did not visit the Military Manpower Administration following that date. On the other hand, the above non-indicted 1 was consulted with C and found to the Military Manpower Administration on the 25th day of the same month, and sought to prepare and submit a written statement (section 7) stating the reasons why the defendant did not enlist, and sought to devise the relief method of the defendant.

C. At the 26th day of the same month, the defendant visited the Military Manpower Administration along with the above non-indicted on the 26th day of the enlistment date, and called "whether or not the above non-indicted should have no way to enlist?" However, according to the rules and regulations of the Military Service Act, the defendant should enlist in the military unit of the defendant by 12th day from the date of enlistment in the 35th day (the second day from the date of enlistment) in the case of the 35th day from the date of enlistment (the second day from the date of enlistment) in the case of the 35th day from the date of enlistment in the case of the 35th day from the date of enlistment." The defendant prepared a written statement to the effect that "I would have known that the defendant will be enlisted within 5 days from the date of enlistment," and that "I would have known that I would not have been able to do so within 3 days from the date of enlistment, I would like to again have the defendant prepare a written statement (the investigation record) and file a charge with the Seoul Police Station.

D. The Defendant and the Nonindicted Party: “I cannot enlist in the military after 26.0 on the same day, and shall be charged without any conditions.” The Defendant sought relief methods and measures against C for a considerable time, but the above C returned the Defendant’s work.”

(e)where a person subject to enlistment in active service fails to enlist on the date of enlistment notified by the person subject to enlistment in active service (hereinafter referred to as "rest enlistment"), the procedure is to enter the military unit upon receiving guidance on the location of the military unit and the final time of enlistment after having visited the Military Manpower Administration and received military service records kept by the Military Manpower Administration, and then having entered the military unit in practice. However, in the case of the defendant, it was impossible to receive official documents necessary for the delayed enlistment from the Military Manpower Administration on the ground that "three days have passed from the date of enlistment."

(f)The date on which a person who has filed an active duty service, which is the established rules of the Military Manpower Administration, may enlist in the army in accordance with the provisions of the latter part of Article 22(3) and of Article 24(1) of the Decree, shall be as follows: 1. The date of enlistment of the person who has filed an active duty service, which is the date of enlistment of the person who has filed an active duty service, shall be as follows:

(g)The reasons why the Military Manpower Administration operates the above established rules for the enlistment in the army are as follows: First, the military unit of the Army shall conduct a simplified physical examination on the first day of the enlistment (the date of the enlistment) and select the first return recipients by conducting blood and personal tests on the second day, shall conduct a precise physical examination for the first return recipients after being notified of blood tests on the third day, and shall undergo a further precise examination for the first return recipients on the fourth day and the fifth day, and for the Army Training Center, two times a week (day a week, a day a week, a day a week), and for the Army Training Center, two times a week (day a week, a day a week), so that the person who delayed enlistment enters the army can enter the army within five days, but in the case of the Army 102, a week (day a week), and in the case of the 2nd unit association, it may not delay the enlistment after the lapse of three days in consideration of training schedule, etc.

3. Details of the relevant statutes;

Article 88 (Challenge of Enlistment) (1) A person who receives a written notice of enlistment in active service or of call-up (including a written notice of enlistment through a recruitment) of the Military Service Act, fails to enlist in the army or call-up, or fails to comply with a call-up, without any justifiable reason, even after the period of the following subparagraphs expires from the enlistment

1. Five days in cases of enlistment in active service (hereinafter referred to as "five days");

Article 2 [Definitions] (Definitions) (1) The definitions of terms used in this Act shall be as follows:

3."Enlistment" means that a military service enters a military unit by conscription, call-up or volunteering;

Article 5 [Kinds of Military Service] (1) Military service shall be classified into active duty service, reserve service, supplemental service, first citizen service and second citizen service as follows:

1. Active service: Officers, warrant officers, noncommissioned officers and officer candidates appointed to active service under this Act or the Military Personnel Management Act concurrently through the enlistment by conscription or application;

Article 61 (Postponement of Date of Enlistment, etc.) (1) Where a person who has received or is to receive a draft physical, conscription (including a recruitment), or call notice, or a person who has difficulty in performing it on the date of fulfillment of the obligation due to a disease, mental or physical disorder, disaster, etc., the date of enlistment may be postponed by application

Article 24 of the Enforcement Decree of the Military Service Act (Report, etc. for Delayed Enlistment) (1) Persons who are to be enlisted in active service and are unable to enlist on the date of enlistment due to natural disasters, traffic congestion, delay in the service of notice, or other unavoidable reasons may enlist within five days from the date

(2) Any person who intends to make a delayed enlistment under the provisions of paragraph (1) shall file a report on the delayed enlistment with the director of the regional military manpower office, and enlist on the date of such report enlistment, and in inevitable cases, he may file such report

(3) The director of the regional office of manpower administration shall send a list of the persons to be delayed and enlisted and their military service records to the commanding officer.

④입영부대의 장은 제3항의 규정에 의하여 지연입영할 사람의 명단과 병적기록표를 받은 때에는 신고된 입영기일에의 입영 여부를 확인하고 입영하지 아니한 사람의 병적기록표를 지방병무청장에게 송부하여야 한다.

4. Determination

A. Determination as to whether statutes are illegal

Article 8(1) of the Military Service Act, which is a punishment law for the accused, provides that a person who has received a notice of enlistment in active service shall be punished if he does not enlist five days after the date of enlistment without justifiable grounds. Thus, a person who fails to enlist within five days from the date of enlistment does not punish the person who has enlisted within five days from the date of enlistment (hereinafter referred to as "person whose enlistment in active service") regardless of justifiable grounds. The purport of the above provision is that a person who has been enlisted in active service shall not be punished for five days after the date of enlistment. It is clear that the second provision of the Military Service Act provides that a person subject to enlistment in active service shall normally be a youth of 30 years of age or less and shall be suspended from enlistment in active service and that the second provision of the Military Service Act provides that a person subject to enlistment in active service shall be subject to a delay in the imposition of a notice of enlistment on the date of enlistment in active service without justifiable grounds for the second provision that a person subject to enlistment shall be subject to a delay in the imposition of a notice of enlistment in active service.

In regard to such interpretation, the prosecutor argues that in the case of interpreting the statutes related to the enlistment in active service as above, the person who is well aware of such statutes intends to undergo a delayed enlistment without any sanction, so that the person who faithfully enlisted in accordance with the date of enlistment will suffer disadvantage in the military unit. However, since the active service period of the active service provider is commenced by enlistment in the military unit, the person who has delayed enlistment will be late at the end of the active service period, so the person who has enlisted in the military on the date of enlistment shall not be specially disadvantageous compared to the person who has delayed enlistment.

B. Determination as to "justifiable cause" under Article 88 (1) of the Military Service Act

(1) It is interpreted that "justifiable cause" under Article 88 (1) of the Military Service Act means a cause for which a person subject to enlistment cannot be held responsible for the result of evading enlistment, such as natural disasters, traffic congestion, delay in the delivery of a notice of enlistment, etc.

According to the above facts, the defendant visited the Military Manpower Administration on September 26, 2002, which is the third day from the date of enlistment, and expressed his intention of enlistment. The 35th unit of the defendant's military unit from the person in charge of the Military Manpower Administration, i.e., the 35th unit of the defendant's military service, which is the 3th unit from the date of enlistment, and the 12:0 million won from the date of enlistment. Thus, the defendant's intention of enlistment as of September 26, 2002 should be viewed as a report of late enlistment under Article 24 (2) of the Enforcement Decree of the Military Service Act, and the public official in charge of the Military Manpower Administration, who received a report of late enlistment, did not receive the defendant's duty of enlistment and the defendant's duty of enlistment based on the established rules of the military service, but did not refuse the enlistment due to such reason.

In this regard, the prosecutor asserts to the effect that the public official in charge of the Military Manpower Administration in charge of the domestic affairs would evade the enlistment even if the defendant had no genuine intention of enlistment. However, the above law does not limit the person who can file a report of delayed enlistment to the person who has the real intention of enlistment. In addition, even if the defendant filed a report of delayed enlistment without the real intention of enlistment, the issue of whether the defendant filed a report of delayed enlistment can be easily published depending on whether the defendant actually enlisted in the military unit after filing the report of the delayed enlistment. Thus, the public official in charge of the administration should not refuse the procedure of delayed enlistment without permission by estimatinging whether the defendant actually enlisted in the military unit after filing the report.

Ultimately, the defendant's failure to enlist in the military within a five-day grace period under Article 88 (1) of the Military Service Act is due to the illegal Enforcement Decree of the Military Service Act, the rules for enlistment in active duty service, and the fact that the public officials in charge of the Military Manpower Administration refuse to initiate the delayed enlistment procedure on the ground that there is a justifiable reason under Article 88 (1) of the Military Service Act for

5. Conclusion

Since there is no evidence to acknowledge that there is no other justifiable reason with regard to the defendant's evasion of enlistment, the facts charged in this case constitute a case where there is no evidence of crime and it is decided as per Disposition by applying the latter part of

Judges Lee Yong-chul