The defendant is a person subject to active duty service.

On November 16, 2016, the Defendant did not enlist until December 30, 2016, when he received a written notice of enlistment in the military service under the name of the head of the Gyeonggi-gu branch office of the Gyeonggi-gu branch office to enlistment in the third association’s new illness training from the Defendant’s residence located in Gyeyang-gu apartment B apartment C, Goyang-gu to December 27, 2016, and without justifiable grounds, three days after the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Documents of enlistment notice;

1. Application of the Acts and subordinate statutes on the written accusation;

1. As to the Defendant’s assertion on criminal facts under Article 88(1)1 of the pertinent Act, the Defendant asserts that “D religious organization” as a believers refuses enlistment according to the order of conscience in accordance with the religious doctrine, and that such refusal constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

"Justifiable reason" under Article 88 (1) of the Military Service Act, which is a punishment provision for refusal of enlistment, is, in principle, premised on the existence of abstract military service and the confirmation of the performance of such duty itself. However, the reason that can justify the non-performance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as illness, should be deemed to be limited to the reason that the non-performance of the duty of military service is not attributable to the person who committed the non-performance of the duty of military service, such as illness. On the other hand, on the other hand, the right of a person who refused to perform the duty of military service is guaranteed by the Constitution of Korea,

Even in cases where it is recognized, if 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 reasonable to view that there exists a justifiable reason to refuse to perform the duty of military service exceptionally in order to exclude such unconstitutional situation.

On the other hand, Article 88 (1) of the Military Service Act is the most fundamental national defense.