Defendant

Despite the fact that a person subject to enlistment in active duty service and a person who has received a written notice of enlistment in active duty service should enlist within three days from the date of enlistment unless there is a justifiable reason, the person was given notice of enlistment in active duty service under the name of the head of the Incheon Military Branch Office to be enlisted in active duty service on December 26, 2016 at the defendant's house located in the Nam-gu Incheon Metropolitan City B, 103 Dong 406 around November 23, 2016 and 27 associations located in the Seocheon-guncheon-gun, Gangwon-do. However, the person did not enlist within three days from the date of enlistment without a justifiable reason.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of the Acts and subordinate statutes on the written accusation;

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 that the Defendant, as a believers witness, refused to perform military service according to one’s religious conscience. This constitutes “justifiable cause” that does not enlist under Article 88(1) of the Military Service Act.

2. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the confirmation of the performance of the duty itself. However, the reason 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, should be deemed as long as it is not attributable to the person who committed 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 the Republic of Korea, and further, the right has superior constitutional value to the function of the legislative purpose of the legal provision of this case.

Even in cases where it is recognized, if punishment is imposed by applying the legal provisions of this case, it would result in an undue infringement of his constitutional rights, and thus, in order to eliminate such unconstitutional situation, it is exceptionally deemed that there exists a justifiable reason to refuse to perform military service.