Although the defendant received a written notice of enlistment in the name of the director general of the Military Manpower Administration in the name of the Gangwon-do Military Manpower Administration, the defendant did not enlist in the military on August 27, 2014 at the office of the defendant located in the East Sea C, and on October 7, 2014 at the office of the defendant located in the East Sea, the defendant did not enlist within three days from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. A written statement that is written by an accuser;

1. Notice of enlistment in active duty service;

1. Application of the Acts and subordinate statutes on the written accusation;

1. Determination as to the assertion of the defendant and his defense counsel under Article 88(1)1 of the relevant Act on criminal facts

1. The gist of the assertion is that the defendant and his defense counsel, as a female witness, refused enlistment according to their religious conscience and belongs to the freedom of conscience guaranteed by Article 18 of the International Covenant on Civil and Political Rights and the Constitution, and that this constitutes “justifiable cause” under Article 88(1) of the Military Service Act and thus does not constitute a crime.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the recognition of its performance. However, the reason why the nonperformance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, is not attributable to the person who failed to perform the military service. However, even in a case where the right of refusal to perform the specific military service is guaranteed by the Constitution of Korea, and the above right is recognized as having superior constitutional value to the legislative purpose of the above provision, if punishment is imposed by the application of Article 88(1) of the Military Service Act, it would result in undue infringement of his constitutional right, and thus, in this case, he refuses to perform the military service exceptionally to exclude such unconstitutional situation.