2017 Highest 492 Violation of the Military Service Act

A

Park Jong-sung (Court) (Court of Justice) (Court of Justice) (Court of Justice)

May 10, 2017

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

Criminal History Office

Even though the Defendant received a written notice of enlistment in active duty service from the Eunpyeong-gu Seoul Metropolitan Government Group B building C to November 27, 2016 on September 28, 2016, the Defendant failed to enlist in active duty service on the religious ground that it is a person subject to enlistment in active duty service and is a believers of D Religious Organizations, without justifiable grounds, within three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Some statements concerning the suspect examination protocol of the defendant;

1. A written accusation;

1. Letters of notification of persons subject to enlistment;

Application of Statutes

1. Article applicable to criminal facts;

Article 88(1)1 of the Military Service Act cannot be deemed to constitute “justifiable cause” under Article 88(1)1 of the same Act. The punishment of conscientious objectors is not against the freedom of conscience under Article 19 of the Constitution (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004). Furthermore, the right to be exempted from the application of the above provisions of the Military Service Act to conscientious objectors pursuant to Article 18 of the International Covenant on Civil and Political Rights to which Korea is a member of the Republic of Korea cannot be derived, and even if the United Nations Commission on the Freedom of Civil and Political Rights proposed recommendations, this does not have legal binding force even if the recommendation was presented (see, e.g., Supreme Court Decision 2007Do8187, Nov. 29, 200). Defendant refused enlistment according to conscience for sentencing, and insofar as the current Act does not recognize alternative military objectors.

However, in light of the fact that the defendant committed the crime of this case according to conscience and the first offender, etc., the sentence of the same punishment as the order shall be sentenced, but even if the sentence is sentenced, it does not seem that the defendant might escape, and thus, the statutory detention is

Judges Lee Jin-hee