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A defendant shall be punished by imprisonment for not less than one year and six months.
Reasons
Punishment of the crime
No person who has received a written notice for enlistment in active service shall enlist in the military without justifiable grounds.
Nevertheless, on November 3, 2013, around 15:27, the Defendant issued a notice of enlistment in active service under the name of the director of the Incheon Gyeonggi-si Military Manpower Office to enlist in the Army Training Center located in Seosan-si, 103 Dong 1406, and on December 9, 2013, the Defendant failed to enlist in the army without justifiable grounds.
Summary of Evidence
1. Partial statement of the defendant;
1. Notifications sent to the Military Manpower Administration, e-mail notifications management, enlistment in active duty service, and application of statutes governing military registers;
1. As to the Defendant’s assertion on criminal facts under Article 88(1)1 of the pertinent Act, the Defendant asserts that punishing a conscientious objector based on conscience as a crime of evading enlistment under Article 88(1) of the Military Service Act is contrary to Article 18 of the International Covenant on Civil and Political Rights (hereinafter “Rules”) and infringes on the freedom of conscience under Article 19 of the Constitution. As such, conscientious objection based on a religious conscience constitutes “justifiable cause” under Article 88(1) of the Military Service Act and thus, cannot be punishable.
The "justifiable cause" under Article 88 (1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the confirmation of the performance of such service. However, the reason that can justify the non-performance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, should be deemed to be limited to a reason that is not attributable to the non-performance of the duty of military service. However, even if the right of a person who refuses to perform the duty of military service is guaranteed by the Constitution of Korea, and the right has superior constitutional value to the legislative purpose of the above provision, even if it is recognized that the right has superior constitutional value to the above provision of the Military Service