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

Punishment of the crime

The defendant is a man and a witness to be enlisted in active service.

On July 1, 2017, the Defendant received a notice of enlistment in active duty service under the name of the head of Suwon-si Military Manpower Administration on August 1, 2017 from the Defendant’s house located in Suwon-si, Suwon-si, and from the Defendant’s house located in 103 Dong 602 to the 50 association located in the west-dong, Chungcheongnam-gu, Seoul Metropolitan City on August 14, 2017, but did not enlist without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

1. A written statement by which C is accused;

1. Notice of enlistment in active service;

1. Evidence of unique numbers of the female and the witness;

1. Application of the Acts and subordinate statutes on the written accusation;

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 female witness, refused to enlist in active duty service according to his religious conscience. Such Defendant’s conscience and religious belief constitute fundamental rights protected by the freedom of conscience pursuant to Article 18 of the Constitution and the freedom of religion pursuant to Article 19, and thus, the Defendant’s refusal to enlist in active duty service constitutes “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.

If a punishment is imposed by applying the above legal provision even to the case of recognition, it would result in an undue infringement of his constitutional rights, so it would be unconstitutional.