The defendant is a witness with her mother.

On September 29, 2017, the Defendant received a notice of enlistment in active duty service under the name of the head of the Seoul Regional Military Affairs Administration to the Army Training Center located in Jung-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-do as of November 6 of the same year, and failed to enlist on the 9th day of the same month after three days from the date of enlistment, in which case three days from the date of enlistment.

Summary of Evidence

1. Statement by the defendant in court;

1. Notification of persons to be enlisted in active duty service and the progress of delivery;

1. Application of Acts and subordinate statutes to a written accusation or a written accusation;

1. Determination as to the defendant's assertion on criminal facts under Article 88 (1) 1 of the Military Service Act

1. The Defendant, as a new witness to women and inn, refused to enlist in active service according to his religious conscience. The Defendant’s refusal to enlist in active service is “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

2. The “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service and the existence of the performance of the duty itself, and the reason why it can justify the nonperformance of the duty specified, i.e., the reason why the nonperformance of the duty cannot be attributable to the person who committed the act.

However, there is a superior constitutional value that a person who has refused to perform a specific duty is guaranteed by the Constitution of the Republic of Korea and further has superior constitutional value that functions as the legislative purpose of the above provision.

Even in cases where it is recognized, if a punishment is imposed by applying the above legal provision, it would result in unfairly infringing upon his/her constitutional rights. In this case, it is reasonable to deem that there exists "justifiable cause" to refuse to perform his/her duties exceptionally in order to eliminate such unconstitutional situation.

On the other hand, the freedom of conscience realization by passive omission among the freedom of religious conscience should be justified.