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

Criminal facts

Defendant is to be enlisted in active service

The Defendant, through e-mail (B) around November 20, 2013, received a written notice of enlistment under the name of the director of the Incheon Gyeonggi Military Manpower Office to enlist in the military on December 24, 2013, but failed to enlist without justifiable grounds.

Summary of Evidence

1. Statement that the defendant has received a written notice of enlistment in active duty service and failed to enlist in the military within that period, as stated in its reasoning;

1. A written accusation;

1. Statement of the accuser;

1. Details of confirmation of e-mail;

1. Notice of enlistment in active duty service;

1. Application of Acts and subordinate statutes governing military register inquiry;

1. Determination as to the defendant's assertion under Article 88 (1) 1 of the relevant Act on criminal facts

1. The gist of the Defendant’s assertion falls under the exercise of specific rights derived from Article 18(1) of the International Covenant on Civil and Political Rights (hereinafter “International Covenant”) incorporated as part of the legal system of the Republic of Korea pursuant to Article 19 of the Constitution and Article 6(1) of the Constitution, and the Defendant’s refusal to enlist in active duty service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. The phrase “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed to be based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, but the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the nonperformancer, such as a disease

However, even if a person who has refused to perform a specific duty is recognized as having superior constitutional value that serves the legislative purpose of the above legal provision, if he/she applies the above legal provision to punish him/her, the right under the Constitution is guaranteed by the Constitution of Korea.