The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

1. 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) concerning the gist of the prosecutor’s appeal is difficult to deem that the prosecutor’s appeal contravenes the Constitution and is unconstitutional.

Although Article 16 (2) of the former Military Service Act (amended by Act No. 14183, May 29, 2016) is a matter of determination of unconstitutionality through adjudication of unconstitutionality of the Constitutional Court, the lower court determined Article 21 (2) of the former Enforcement Decree of the Military Service Act as unconstitutional and acquitted the Defendant on the ground that the lower court erred by misapprehending the legal doctrine.

2. Determination

A. On May 25, 2016, the Defendant was issued a written notice of enlistment in active duty service under the name of the head of the Gyeong-nam Regional Military Affairs Administration, to the effect that the Defendant is a person subject to separate enlistment in active duty service, and that “is enlisted in the three association located in Gangwon-do by June 7, 2016,” through D, a security guard of the said apartment, is “is enlisted in the three association located in Gangwon-do.”

Nevertheless, the defendant did not enlist in the military without justifiable grounds until June 10, 2016 after three days from the date of entering the military.

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 unlawful since the notice of enlistment to the Defendant by the head of the Busan Regional Military Manpower Administration was not served 30 days before the date of enlistment, and thus, even if the Defendant did not enlist within three days after the date of entry determined in the above disposition, the lower court determined that the Defendant cannot be deemed to have violated the Military Service Act.

(c)

The Military Service Act (Act May 29, 2016) shall be amended on May 29, 2016.