A defendant shall be punished by imprisonment for not less than one year and six months.

Punishment of the crime

The defendant is a person whose call-up of social service personnel has been postponed on the grounds of disease, and is a person subject to separate call-up due to the lapse of the postponement period.

On December 23, 2016, the Defendant received a notice of convening a social service personnel in the name of the head of the Gyeong-nam Regional Military Affairs Administration to respond to the call-up of a social service personnel in the 39 association new service training unit located on the 56th channel of Chang-si, Changwon-si on January 9, 2017, and did not respond to the call-up without justifiable grounds, even though he/she received a notice of convening a social service personnel in the name of the head of the Gyeong-nam Regional Military Affairs Administration.

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 the change in the judgment regarding criminal facts under Article 88(1)2 of the pertinent Act is that the Defendant, as a believers of the C religious organization, refused enlistment according to the order of conscience in accordance with the religious doctrine, and the conscientious objection based on conscience is justifiable act consistent with the Constitution and international norms, and thus, does not constitute a crime of violating the Military Service Act.

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. In addition, Article 18 of the International Covenant on Civil and Political Rights, in which Korea is a member of the Republic of Korea, the right of conscientious objectors pursuant to conscience to be exempted from the application of the above provisions of the Military Service Act is not derived, and even if the United Nations Commission on Freedom of Rights presents a recommendation, this does not have any legal binding force (see Supreme Court Decision 2016Do12346, Nov. 10, 2016). Accordingly, the Defendant’s assertion is concerned.