The Defendant, as a person subject to enlistment in active duty service on October 27, 2016, was issued a written notice to enlistment in the Army Training Center in the name of the head of the Gyeongnam Regional Military Affairs Administration on November 21, 2016 through security guards, and did not enlist without good cause.

Summary of Evidence

1. Partial statement of the defendant;

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

1. The gist of the assertion regarding the determination of a change in the position of the Defendant regarding criminal facts under Article 88(1)1 of the pertinent Act is as follows: (a) the Defendant, as a believers, refused enlistment in active duty service in accordance with the order of conscience in accordance with the religious doctrine; and (b) conscientious objection based on conscience is a justifiable act consistent with the Constitution and international norms; and (c) thus, it does not constitute a violation

Judgment

Article 88(1) of the Military Service Act that punishs evasion of enlistment does not violate the Constitution (see, e.g., Constitutional Court Order 2002Hun-Ga1, Aug. 26, 2004; Constitutional Court Order 2008Hun-Ga22, Aug. 30, 201). In addition, the so-called conscientious objection based on one’s conscience does not constitute “justifiable cause” as provided for by the exception to punishment under the above provisions of the Military Service Act, and punishing the same does not violate the freedom of conscience under Article 19 of the Constitution.

B. A. Article 18 of the International Covenant on Civil and Political Rights, in which Korea is a member of the Republic of Korea, does not derive the right to be exempted from the application of the above provisions of the Military Service Act, but does not have any legal binding force even if the United Nations Commission on Freedom of Rights proposed a recommendation (see Supreme Court Decision 2016Do12346, Nov. 10, 2016). Accordingly, the Defendant’s assertion is rejected as it goes against the Constitutional Court’s decision and the purport of the Supreme Court’s decision.