Upon receipt of a written enlistment notice from a person subject to active duty service, the defendant shall comply with the enlistment within three days from the date of enlistment.

Nevertheless, on July 6, 2015, the Defendant received a written enlistment notice from D, the mother of the Defendant, who received the written enlistment notice under the name of the director of the Seoul Regional Military Manpower Office, to enlist in the Army as of August 18, 2015 from the Seoul Central Military Manpower Office’s office, and did not comply with the enlistment without justifiable grounds, even if three days have passed since the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation of E;

1. Written accusation of the Seoul Regional Military Manpower Office;

1. Application of Acts and subordinate statutes of notification of enlistment in active service;

1. The Defendant’s assertion as to the Defendant’s assertion on criminal facts under Article 88(1)1 of the Military Service Act asserts to the effect that there exists a justifiable reason for refusal of enlistment, since he refused enlistment according to the freedom of conscience guaranteed by the Constitution with the belief of “F religious organization”.

However, “justifiable cause” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, is, in principle, premised on the existence of abstract military service and the recognition of its performance. However, it should be deemed that there is a reason that can justify the non-performance of the duty of military service as specified by the decision of the Commissioner of the Military Manpower Administration, i.e., disease, etc., that is, a cause not attributable to the non-performance of the duty of military service. On the other hand, in a case where a person who refuses to perform a specific duty of military service is guaranteed by the Constitution of Korea, and furthermore, even in a case where the right is recognized as having superior constitutional value that serves the legislative purpose of the above provision, if punished by the application of Article 88(1) of the Military Service Act, the punishment would result in undue infringement of his constitutional right