The defendant is a man and a witness to be enlisted in active service.

On October 7, 2015, the Defendant received a notice of enlistment in active duty service under the name of the head of the Incheon Army Training Center under the name of the head of the Incheon Army Training Center from the Defendant’s residence No. B and 503 around November 9, 2015, and did not enlist without justifiable grounds until the 12th day of the same month after the date of enlistment.

Summary of Evidence

1. Statement by the defendant in court;

1. The head of the Incheon Military Affairs Branch Office;

1. Determination on the defendant's assertion as a result of military register inquiry, enlistment in active duty service, and postal notice

1. The Defendant asserted that he refused to enlist in active service according to his religious conscience as a “synovah’s Witness.” Since such conscientious objection is guaranteed by the freedom of conscience under the Constitution and the International Covenant on Civil and Political Rights, Defendant’s refusal to enlist in the military is “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service under the premise of the existence of such duty of military service and the recognition of its performance, but the reason that can justify the nonperformance of such duty as specified, i.e., disease, etc., is not attributable to the person who committed such duty.

However, there is a superior constitutional value that a person who has refused to perform a specific duty is guaranteed by the Constitution of the Republic of Korea and further has superior constitutional value that functions as the legislative purpose of the above legal provision.

Even in cases where it is recognized, if a punishment is imposed by applying the above legal provision, it would result in unfairly infringing upon his/her constitutional rights. In this case, it is reasonable to deem that there exists "justifiable cause" to refuse to perform his/her duties exceptionally in order to eliminate such unconstitutional situation.

B. Meanwhile, the freedom of religious conscience is passive.