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

On February 13, 2014, the Defendant received a notice of enlistment in active duty service under the name of the head of the Gyeonggi-gu Military Manpower Branch Office and the head of the Gyeonggi-do Military Manpower Branch Office to enlistment in the Army Training Center located in Yongsan-gu, Seoyang-si on March 24, 2014, and did not, without justifiable grounds, failed to enlist within three days after the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Notification of enlistment in active service, and application of registered mail-related Acts and subordinate statutes;

1. Determination as to the Defendant’s assertion of criminal facts under Article 88(1)1 of the relevant Act

1. The alleged Defendant refused to enlist in active duty service according to religious conscience as a witness with a female and a female witness.

Since such conscientious objection is guaranteed pursuant to Article 18 of the Constitution’s freedom of conscience and the International Covenant on Civil and Political Rights, there exists “justifiable cause” under Article 88(1) of the Military Service Act that the Defendant refused to enlist.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, and the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the non-performance of the duty, such as a disease, should

However, even in cases where a person who has refused to perform a specific obligation is guaranteed by the Constitution of the Republic of Korea and furthermore, has superior constitutional value to the function of the legislative purpose of the above provision, if punishment is imposed by applying the above provision, it would result in an undue infringement on his/her constitutional rights. Therefore, it is reasonable to deem that there exists “justifiable cause” to refuse to perform the duty to the person, in order to exclude such unconstitutional situation.