In a case where the Defendant, who is a person subject to separate enlistment in active duty service, was indicted for violating the Military Service Act on the ground that he failed to enlist without justifiable grounds within three days from the date of enlistment, even after receiving the notice of enlistment in active duty service, the case holding that since Article 21(2) of the former Enforcement Decree of the Military Service Act violates the Constitution, the written notice of enlistment shall also be served on the person subject to separate enlistment in active duty service 30 days prior to the date of enlistment pursuant to Article 21(1) of the Enforcement Decree of the same Act, on the ground that the head of the competent regional military manpower office reduced the service period and notified the

In a case where the defendant, who is a person subject to separate enlistment in active duty service, received a written notice of enlistment in active duty service and was prosecuted for violating the Military Service Act on the grounds that he failed to enlist without justifiable grounds within three days from the date of enlistment, the case holding that Article 21(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 27620, Nov. 29, 2016; hereinafter “Enforcement Decree”) provides that the director of the regional military manpower office shall deliver the written notice of enlistment to the person subject to enlistment in active duty service whose order of enlistment is determined by the Presidential Decree by 30 days prior to the date of enlistment, but Article 21(2) of the Enforcement Decree does not comply with the order of enlistment and does not stipulate any provision on the criteria for exercising discretion to reduce the period of service of the written notice of enlistment to the person subject to separate enlistment in active duty service, and thus, the person subject to separate enlistment in active duty service should also serve the written notice by 30 days prior to the date of enlistment.

Articles 1(1), 10, 11(1), and 107(2) of the Constitution of the Republic of Korea; Articles 16(1) and (2), and 88(1)1 of the former Military Service Act (Amended by Act No. 14183, May 29, 2016); Article 20 of the former Enforcement Decree of the Military Service Act (Amended by Presidential Decree No. 2720, Jun. 14, 2016); Article 21(1) of the former Enforcement Decree of the Military Service Act (Amended by Presidential Decree No. 27620, Nov. 29, 2016); Article 21(2) of the former Enforcement Decree of the Military Service Act; Article 325 of the Criminal Procedure Act

Defendant

50,000,000

Attorney Park Jong-hoon

The defendant shall be innocent.

Article 21 (2) of the Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 21867 of Dec. 7, 2009) is unconstitutional.

1. Summary of the facts charged

On December 24, 2015, the Defendant directly received a notice of enlistment in active duty service in the name of the director of the Busan regional military manpower office to the effect that “A person subject to separate enlistment in active duty service is to be enlisted in the army as supplements to 102, located in ( Address 2 omitted) 1, 2016.” Nevertheless, the Defendant failed to enlist in the army without justifiable grounds until January 15, 2016, for which three days have passed from the date of enlistment.

2. Determination

(a) the meaning of a democratic Republic;

The Republic of Korea is a Democratic Republic (Article 1(1) of the Constitution of the Republic of Korea). Democratic State refers to a political community in which the action and life of the people are regulated by the law, with the consent of the sovereign citizens. The Republic means a political community in which the members are living together, that is, a political community in which any of the members is governed by the law based on public election, not bound by the arbitrary will of a specific person. Even if the law is based on the most democratic procedure in this world, it may be a arbitrary law that forces one part of the society to express another and deprives of the autonomy of the members forced to express his/her will. Accordingly, Article 1(1) of the Constitution of the Republic of Korea provides that a community pursuing the Republic of Korea should be a democratic state at the same time as a democratic state.

B. Grounds for the existence of the judiciary in the Republic of Korea

1) All citizens shall have dignity and value as human beings and have the right to pursue happiness. The State has the duty to confirm and guarantee the fundamental human rights of an individual (Article 10 of the Constitution of the Republic of Korea). In addition, all citizens shall be equal before the law, and no person shall be discriminated against in all areas of political, economic, social, and cultural life by gender, religion, or social status (Article 11(1) of the Constitution of the Republic of Korea). Accordingly, the judiciary, which is a State agency, should apply laws so that all citizens enjoy dignity and value as human beings, pursue happiness, and enjoy legal benefits in all areas of life. In other words, the existence of the judiciary in the Republic of Korea, by expanding the benefits of the rule of law in all areas of life, thereby enabling all citizens to enjoy dignity and value as human beings and pursue happiness.

2) If the judiciary expands the benefits of the rule of law to the members of the Republic of Korea, the judiciary must actively control the arbitrary powers regardless of public law relations and judicial relations so that all the members of the Republic can lead a life freely according to their will, regardless of public authority or the arbitrary will of others.

C. Criteria for examining the unconstitutionality of the contents of administrative legislation

In the administrative legislation, the discretionary action is defined at all, or even if it is defined, if the contents of the discretionary action are unclear, the administrative agency grants arbitrary power to the administrative agency. In such a situation, the members of the legal community are unable to predict the future situation and can not decide their own actions, but can not seek and design their future lives. Therefore, such administrative legislation violates the principles of the Republic of Korea and the rule of law as stipulated in the Constitution, and thus is in violation of the Constitution.

D. unconstitutionality of Article 21(2)(hereinafter “instant provision”) of the Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 21867, Dec. 7, 2009)

In full view of the provisions of Article 16(1) and (2) of the former Military Service Act (amended by Act No. 14183, May 29, 2016) and Article 20 of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 2720, Jun. 14, 2016), persons subject to enlistment in active duty service are classified into those subject to separate enlistment who are not in accordance with the order of conscription and those subject to enlistment and are able to separately enlist in active duty service. Article 21(1) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 27620, Nov. 29, 2016; hereinafter the same) provides that the director of the regional military manpower office shall deliver a written notice of enlistment to those subject to enlistment in active duty service whose order of conscription has been decided by 30 days prior to the date of enlistment. On the other hand, the instant provision grants the director of the regional military manpower office a reduction of discretionary power to those subject to enlistment.

E. Whether the defendant violated the Military Service Act

1) Administrative disposition taken to notify enlistment in active duty service

The director of a regional military manpower office shall notify a person to be enlisted for active duty service of a fixed date and place of enlistment, and, upon such notification, a specific obligation to enlistment is imposed on the person subject to enlistment for active duty

2) Whether an administrative disposition is unconstitutional or unlawful in a criminal trial

In a criminal law where the constitutionality or illegality of an administrative disposition depends on the establishment of a crime, it is the premise of a criminal trial as to the constitutionality or illegality of such administrative disposition. Therefore, in the relevant criminal trial, the establishment of a crime may be determined by examining whether such administrative disposition is unconstitutional or unlawful (see Article 107(2) of the Constitution of

3) Whether a notification of enlistment in active duty service is unlawful constitutes a violation of the Military Service Act

Article 88(1)1 of the former Military Service Act (amended by Act No. 14183, May 29, 2016; hereinafter the same) provides that a person notified of enlistment in active duty service shall be punished by imprisonment with labor for not more than three years, if the person subject to the notification of enlistment in active duty service fails to enlist within three days from the date specified in the notification of enlistment in active duty service, without justifiable grounds. This provision is lawful and the date specified in the notification of enlistment in active duty service can be deemed the initial date of the duty to enlist. Therefore, if the notification of enlistment in active duty service is unlawful, the date specified in the notification of enlistment in active duty cannot be deemed the initial date of the duty to enlist under Article 88(1)1 of the former Military Service Act. Thus, even if the other party to the notification of enlistment in active duty service fails to enlist within three days from the date specified in the notification of enlistment in active duty service, the crime of violation of Article

(iv) a lawful service period for those subject to separate enlistment in active duty service.

As seen earlier, this case’s provision that provides for the reduction of the service period for those subject to separate enlistment in active duty service violates the Constitution, and thus, a written notice of enlistment shall also be served to those subject to separate enlistment in active duty service 30 days prior to the date of enlistment pursuant to Article 21(1) of the former Enforcement Decree of

5) The defendant's violation of the Military Service Act

According to the evidence duly adopted and examined by this court, the defendant constitutes a person subject to separate enlistment, and the director of the competent regional military manpower office may recognize the fact that the defendant did not deliver a written notice of enlistment to the defendant 30 days prior to the date of enlistment, and the director of the competent regional military manpower office has given a notice of enlistment to the active duty service by shortening the service period. In light of the aforementioned legal principles, such a notice of enlistment in active duty service is unlawful, so long as the date determined in the disposition cannot be deemed the initial date of enlistment duty, even if the defendant did not enlist within three days from the date determined in the disposition, the crime of violation of Article 8

3. Conclusion

Thus, since the facts charged in this case are when there is no proof of crime, it is decided as per Disposition to sentence innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judge Lee Jin-hun