The defendant is a person subject to enlistment in active service.

The defendant, around July 4, 2013, delivered a notice of enlistment in active service at the defendant's house located in Seo-gu Incheon, Seo-gu, 108 Dong 1305, and the defendant did not, without justifiable grounds, enlist in the Army Training Center located in Seosan-si, Seosan-si within three days from August 19, 2013, which is the date of enlistment.

Summary of Evidence

1. Statement by the defendant in court;

1. A written statement of the accuser (C);

1. A written accusation;

1. Application of the notified statute

1. As to the Defendant’s assertion on criminal facts under Article 88(1)1 of the pertinent Article of the Military Service Act, the Defendant asserts that, as the believers of D religious organizations, the Defendant refused to enlist in active duty service according to his religious conscience. Since such right to conscientious objection is guaranteed by the freedom of conscience under Article 19 of the Constitution, the Defendant asserts that there exists a justifiable reason under Article 88(1) of the Military Service Act (hereinafter “instant legal provision”).

However, the "justifiable cause" in the legal provision of this case is, in principle, premised on the existence of abstract military service and the confirmation of its performance itself, but it should be deemed that there is a cause that can justify the non-performance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, i.e., a cause that does not occur to the non-performance of the military service

(See Supreme Court Decisions 67Do677 delivered on June 13, 1967 and 2003Do5365 delivered on December 26, 2003). However, even in cases where a person who refused to perform a specific duty of military service is recognized as having superior constitutional value to the legislative purpose of the legal provision of this case, if he/she is punished by applying the legal provision of this case, it would result in an undue infringement of his/her constitutional rights, and thus, in this case, he/she exceptionally excluded such unconstitutional situation.