The Defendant, as a person subject to enlistment in active duty service on July 18, 2016, was issued a notice of enlistment in the military training center in the name of the head of the Jeju District Military Affairs Administration on August 22, 2016 at the Defendant’s office located in Jeju-si, Chungcheongnam-si, and on August 22, 2016, but failed to enlist in the said military unit without justifiable grounds for more than three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. The Director General of the Military Affairs Administration;

1. Written statements prepared by D;

1. Notice of enlistment in active duty service;

1. Application of statutes governing delivery of muster notices;

1. Relevant legal provisions concerning criminal facts: Determination on the assertion of the defendant and his/her defense counsel under Article 88(1)1 of the Military Service Act

1. The gist of the assertion is that the Defendant’s refusal to enlist in the military constitutes conscientious objection, which is derived from the freedom of conscience under Article 18 of the Covenant on Freedom of Freedom and Article 19 of the Constitution of the Republic of Korea. As such, there exists “justifiable cause for refusing enlistment” under the Military Service Act.

2. Determination

A. Inasmuch as the exercise of fundamental rights under the Constitution should be carried out within the scope that enables a common life with others within a community and does not endanger other constitutional values and the legal order of the State, the exercise of all fundamental rights, including the freedom of conscience, is a fundamental limitation to the exercise of all fundamental rights. Thus, in a case where there exists a constitutional legal interest to justify the restriction, the freedom of conscience realization is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution.

However, Article 88(1) of the Military Service Act, which is a legal provision of the instant case, was prepared to specify the duty of national defense of the most fundamental citizen, and if the State’s security is not guaranteed because such duty of military service is not fulfilled properly, it is difficult to guarantee the dignity and value of the people as human beings.

Therefore, it is true.