Upon receipt of a written notice of enlistment for active duty servicemen, the enlistment shall be conducted within three days from the date of enlistment.

Nevertheless, the Defendant, at around September 18, 2015, received a written notice of enlistment under the name of the head of the Military Affairs Administration prior to the enlistment on November 3, 2015, from the Defendant’s residence located in the Dasan-si B around September 18, 2015, but did not, without justifiable grounds, failed to enlist within three days after the date of enlistment.

Summary of Evidence

1. Statement by the defendant in court;

1. Application of Acts and subordinate statutes regarding accusation, notice of enlistment in active duty service, and military register inquiries;

1. The freedom of conscience realization by passive omission among the freedom of religious conscience determination as to the Defendant’s assertion regarding criminal facts under Article 88(1)1 of the pertinent Article of the Military Service Act is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution in a case where there exists a constitutional legal interest to justify the restriction.

However, the duty of military service recognized under the Constitution, Article 37(2) of the Constitution of the Republic of Korea, which ensures the dignity and value of the people as human beings, is ultimately primarily required for the existence of the nation’s community. As such, the Defendant’s freedom of conscience, etc. cannot be deemed as a superior value to such constitutional legal interests. As a result, even if the freedom of conscience, etc. of the Defendant is restricted pursuant to Article 37(2) of the Constitution for the said constitutional legal interests, it can be deemed as a justifiable restriction permitted under the Constitution.

There is a wide range of legislative discretion for the legislators as to whether to impose punishment on the refusal of enlistment in active service, and whether to recognize alternative service.

Therefore, it is only a provision that imposes punishment without any special exception that allows a person who refuses enlistment in active service on the grounds of conscience and religious freedom to replace enlistment in active service.