The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for up to six months.

1. Article 21(2) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 27620, Nov. 29, 2016) that provides that the service period of a notice of enlistment for those on active duty service separately subject to enlistment shall be reduced, cannot be deemed as unconstitutional. Even if such provision is not applicable, it shall be determined unconstitutional through the delegation of Article 16(2) of the former Military Service Act that provides that the head of a regional military service office may allow a separate enlistment of those on active duty to separately enlist in the military service (amended by Act No. 14183, May 29, 2016).

However, the court below found that Article 21 (2) of the Enforcement Decree of the former Military Service Act violates the Constitution and rendered a not-guilty verdict on the facts charged of this case. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

2. Determination

A. The summary of the facts charged in the instant case is a person subject to separate enlistment in active duty service.

On May 3, 2015, the Defendant’s father D, living together with the Defendant, who directly received the notice of enlistment in active duty service under the name of the head of the Busan Regional Military Affairs Administration in his name on May 18, 2015, and around that time, the Defendant did not immediately enlist until May 21, 2015, for which three days have passed since the date of enlistment, even though he received the said notice from his father.

B. The lower court determined that Article 21(2) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 27620, Nov. 29, 2016) (amended by Presidential Decree No. 27620, Nov. 29, 2016) provides that the period of service of a written notice of enlistment for a person subject to separate enlistment in active duty service is in violation of the Constitution, thereby violating the Republic of Korea’s principles and the rule of law.