The defendant is a witness witness in Jehovahovah.

On November 27, 2017, the Defendant received a written notice of enlistment in active duty service under the name of the head of the Busan Regional Military Affairs Administration, and failed to enlist in the military for three days from the date of enlistment without justifiable grounds, in which he received a written notice of enlistment in active duty service under the name of the head of the Busan Regional Military Affairs Administration, to be enlisted in the Defendant’s house located in the Busan Seo-gu C or 301, 301, and in December 26, 2017.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation;

1. Application of statutes to the details of enlistment notice in active duty service and inquiries about delivery of mail;

1. Determination as to the assertion by the Defendant and the defense counsel regarding criminal facts under Article 88(1)1 of the relevant Act

1. The gist of the assertion is that the Defendant, as a witness of Jehovahovah, refused to enlist in the military according to his religious conscience. As such, the Defendant’s refusal to enlist in the military is “justifiable cause” under Article 88(1) of the Military Service Act.

2. The “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service and the existence of the performance of the duty itself, and the reason why it can justify the nonperformance of the duty specified, i.e., the reason why the nonperformance of the duty cannot be attributable to the person who committed the act.

However, there is a superior constitutional value that a person who has refused to perform a specific duty is guaranteed by the Constitution of the Republic of Korea and further has superior constitutional value that functions as the legislative purpose of the above provision.

Even in cases where it is recognized, if a punishment is imposed by applying the above legal provision, it would result in unfairly infringing upon his/her constitutional rights. In this case, it is reasonable to deem that there exists "justifiable cause" to refuse to perform his/her duties exceptionally in order to eliminate such unconstitutional situation.

On the other hand, the freedom of religious conscience is passive omission.