On November 12, 2016, the Defendant was served with a notice of enlistment in active service under the name of the head of the Military Affairs Administration of North Korea, which was served on December 19, 2016, on the part of the Defendant’s residence located in Dasan-si B, and on December 19, 2016, the Defendant failed to enlist without justifiable grounds until three days after the date of entry.

Summary of Evidence

1. Statement by the defendant in court;

1. C’s statement;

1. Application of Acts and subordinate statutes to a written accusation or notice of enlistment in active duty service;

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 assertion is the right to refuse enlistment according to religious conscience as a female witness and belongs to the freedom of conscience guaranteed by Article 18 of the International Covenant on Civil and Political Rights and the Constitution. This constitutes “justifiable cause” under Article 88(1) of the Military Service Act and 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 abstract military service and the recognition of its performance. However, it should be deemed that there is a reason to justify the nonperformance of the duty of military service that is specified by the decision of the head of the Military Affairs Administration, etc., such as illness, that is, a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused to perform 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 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.

B. Article 88 of the Military Service Act.