Anyone who receives a written notice of enlistment from a person subject to active duty service shall enlist within three days from the date of enlistment.

Nevertheless, the Defendant did not enlist until December 18, 2015, for which three days have passed from the date of enlistment without justifiable grounds, even though the Defendant received a written notice of enlistment from the branch office of the military affairs branch of the Gyeonggi-do Branch of the Military Affairs, which was located at the 76th seat of the Dong-si, the Seoul High Court on November 13, 2015, and from December 15, 2015, to the fifth association.

Summary of Evidence

1. Partial statement of the defendant;

1. A written statement which is the accuser B;

1. Determination as to the defendant's assertion of the status of enlistment notification, receipt of enlistment notification, and notification sent to the Military Manpower Administration

1. The gist of the assertion is that the Defendant’s refusal to enlist in the military is a female witness and a witness who exercises the right to refuse to enlist in the military according to religious belief, which constitutes “justifiable cause” to refuse enlistment under Article 88(1) of the Military Service Act.

2. Determination

A. The meaning of “justifiable cause” under Article 88(1) of the Military Service Act is based on the premise that the existence of an abstract duty of military service and the fulfillment of the duty itself are affirmed. However, the reason that can justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as the head of the Military Service, and that is, that is, the reason that the nonperformance of the duty of military service is not attributable to the person who committed the duty of military service (see Supreme Court Decision 2003Do5365, Dec. 26, 2003, etc.): Provided, That the right of a person who refused the performance of a specific duty of military service is guaranteed by the Constitution of Korea, and the right has superior constitutional value that can function as a legislative purpose under Article 88(1) of the Military Service Act.

Even if it is recognized, the punishment by applying the above legal provision would result in unfairly infringing upon his constitutional rights. In this case, there is a justifiable reason to refuse to perform his duty of military service on an exceptional basis to exclude such unconstitutional situation.