The defendant is "B" and is a person subject to enlistment in active duty service, and upon receipt of a written notice of enlistment in active duty service, he/she shall enlist within three days from the date of enlistment.

On November 15, 2015, the Defendant received a notice of enlistment from the Administrator of the Military Affairs Administration of the Gyeonggi-si to the Army Training Center located in Chungcheongnam-si by December 7, 2015, the Defendant failed to enlist in the military without justifiable grounds by no later than three days after the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation of E;

1. Determination on the Defendant and defense counsel’s assertion regarding the registered delivery information

1. The gist of the assertion is that the Defendant’s refusal to enlist in the army is exercising the right to refuse conscientious soldiers according to religious belief as B, which constitutes “justifiable cause” to refuse enlistment under Article 88(1) of the Military Service Act.

2. Determination

A. The meaning of “justifiable cause” under Article 88(1) of the Military Service Act is based on the premise that the existence of an abstract duty of military service and the fulfillment of the duty itself are affirmed. However, the reason that can justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as the head of the Military Service, and that is, that is, the reason that the nonperformance of the duty of military service is not attributable to the person who committed the duty of military service (see Supreme Court Decision 2003Do5365, Dec. 26, 2003, etc.): Provided, That the right of a person who refused the performance of a specific duty of military service is guaranteed by the Constitution of Korea, and the right has superior constitutional value that can function as a legislative purpose under Article 88(1) of the Military Service Act.

Even if it is recognized, the punishment by applying the above legal provision would result in an undue infringement of his constitutional rights. In this case, the duty of military service shall be performed exceptionally to exclude this unconstitutional situation.