The Defendant is a person subject to enlistment in active duty service who was judged to be subject to Grade I active duty service on August 23, 2013.

On October 20, 2016, the Defendant did not enlist within three days from the date of enlistment, on the ground that he was religious faith, even though he received a written notice of enlistment from the head of the military affairs branch office of the Gyeonggi-gu Military Affairs and the head of the Gyeonggi-do Military Affairs Branch Office to enlistment as the Army Training Center by November 14, 2016.

Summary of Evidence

1. Statement by the defendant in court;

1. Notices sent to the Military Manpower Administration;

1. Application of Acts and subordinate statutes that notify the filing of an accusation and enlistment in active service;

1. As to the Defendant’s assertion on criminal facts under Article 88(1)1 of the pertinent Act, the Defendant asserts that the Defendant’s refusal of enlistment in active duty service according to a religious conscience as “novah Witness” is a new witness. Since such right to refuse enlistment in active duty service is guaranteed by the Constitution, the Defendant’s refusal of enlistment in active duty service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

With respect to the so-called “ conscientious objection according to conscience,” the Constitutional Court decided that Article 88(1) of the Military Service Act, which is a provision punishing the act of evading enlistment, does not violate the Constitution (see Constitutional Court Order 2008Hun-Ga22, Aug. 30, 201). The Supreme Court decided that conscientious objection according to conscience does not constitute “justifiable cause” as provided for the exception to punishment under the above provision. From the provision of Article 18 of the International Covenant on Civil and Political Rights to which the Republic of Korea is a party, the right to be exempted from the application of the above provision is not derived, and even if the United Nations Commission on the Freedom of Covenant proposed recommendations, this does not have any legal binding force (see, e.g., Supreme Court Decision 2004Do2965, Jul. 15, 2004; Supreme Court Decision 2007Do7497, Dec. 27, 2007).