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

No person who has received a written notice of enlistment in active duty service shall be enlisted unless he/she fails to enlist within three days from the date of enlistment without justifiable grounds.

Nevertheless, on September 4, 2013, the Defendant was in the Defendant’s house located in Yongsan-si B and 102 Dong 408 (C apartment) from the Defendant’s office to the 306 supplementary unit from October 15, 2013, and did not enlist without justifiable grounds by the date on which three days elapsed from the date of enlistment, even though he received a notice of enlistment in the name of the director of the Incheon Gyeonggi Gyeonggi Military Manpower Office.

Summary of Evidence

1. Partial statement of the defendant;

1. Written statements of D;

1. Application of Acts and subordinate statutes governing military register inquiry;

1. As to the Defendant’s assertion regarding criminal facts under Article 88(1)1 of the former Military Service Act (amended by Act No. 11849, Jun. 4, 2013), the Defendant asserts that, according to the right derived from the freedom of conscience under Article 18 of the International Covenant on Civil and Political Rights and Article 19 of the Constitution, the Defendant’s refusal of military service according to a religious conscience constitutes justifiable cause.

However, the "justifiable cause" of Article 88 (1) of the Military Service Act, which is a punishment provision for evading enlistment, 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 reason that can justify the non-performance of the duty of military service as specified by the decision of the Commissioner of the Military Manpower Administration, etc., i.e., a reason that is not attributable to the non-performance of the duty of military service, such as illness. On the other hand, on the other hand, the right that the non-performance of the specific duty of military service is guaranteed by the Constitution of Korea, and furthermore, even if the right has a superior constitutional value that serves the legislative purpose of the above provision, if punished by the application of Article 88 (1) of the Military Service Act,