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 subject to enlistment in active duty service, and is a witness to women in nursing.

On November 3, 2016, the Defendant was given a notice of enlistment in active duty service under the name of the head of the Military Affairs Administration of Gyeong-nam District Office to the Army Training Center as of December 12, 2016 at the Defendant’s office located in Jinnam-si, Jin-si, and the Defendant failed to enlist within three days from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

1. A protocol concerning the suspect examination of the accused by the prosecution;

1. Application of Acts and subordinate statutes concerning taxation information as a result of enlistment in active duty service and delivery;

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 enlist in active service according to the freedom of conscience and religion, and such refusal of military service is guaranteed by the freedom of conscience and religion under the Constitution and the International Covenant on Civil and Political Rights. As such, the Defendant’s refusal of enlistment constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, and the reason that can justify the nonperformance of the duty specified, i.e., disease, etc., is not attributable to the person who committed the act of nonperformance.

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 the right has superior constitutional value to the function of the legislative purpose of the above provision.

Even if it is recognized, if punishment is applied to the above legal provision, it would result in an undue infringement on his constitutional rights. In this case, in order to eliminate such unconstitutional situation, the "justifiable cause" should be applied to him.