The defendant is a person in active duty service.

On November 3, 2016, the Defendant directly received a written enlistment notice to enter the military training center in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-gu, Daejeon, to be on December 5, 2016 at the Defendant’s residence located in Seo-gu, Daejeon, Daejeon.

However, without justifiable grounds, the defendant did not enlist in the military even though the period of three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation and a written accusation;

1. Notification of enlistment in active duty service, provision of Internet delivery information, notification sent to the Military Manpower Administration, and application of statutes regarding military register inquiries;

1. Determination as to the defendant's assertion on criminal facts under Article 88 (1) 1 of the Military Service Act

1. The gist of the argument is that the Defendant, as a female witness and a new witness, refused to enlist in the army according to his religious conscience. This is based on the right belonging to the freedom of conscience and religion guaranteed by the Constitution, and thus does not constitute a crime as constituting “justifiable cause” under Article 88(1) of the Military Service Act.

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.

In addition, if a punishment is imposed by applying Article 88(1) of the Military Service Act to cases where it is recognized, it may result in an undue infringement of his constitutional rights. In this case, it is exceptionally refused to discharge his duty of military service in order to avoid such unconstitutional situation.