Although the Defendant confirmed the e-mail of the call-up notice to enlist from the Military Manpower Administration to December 20, 2012 of the same year from around October 28, 2016, the Defendant did not, without justifiable grounds, enlist within three days from the fixed day without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

1. A written accusation;

1. A written accusation;

1. A statement of particulars of accusation;

1. Notice of enlistment in active duty service;

1. A list of those to be notified in enlistment;

1. Notice of enlistment in active service;

1. Management of persons subject to the management (the details of the personal information and the literature list);

1. Notices sent to the Military Manpower Administration;

1. Application of Acts and subordinate statutes governing source for fact-finding (B religious organizations), identification number increase;

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 the believers of the religious organization B, refused to enlist in the military according to his religious conscience. This constitutes “justifiable cause” under Article 88(1) of the Military Service Act, which is based on the right belonging to the freedom of conscience and religion guaranteed by the Constitution, and thus does not constitute a crime.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of an abstract military service and the confirmation of the performance of the duty itself. However, the grounds that justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as illness, etc., should be deemed to be limited to a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused the performance of the specific duty of military service is guaranteed by the Constitution of Korea, and the right has superior constitutional value that enables the legislative purpose of the above provision.

Even if it is recognized, if a punishment is imposed by applying Article 88(1) of the Military Service Act, it would result in an undue infringement on his constitutional rights. In this case, it is exceptionally intended to exclude this unconstitutional situation.