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 in active duty service.

On November 3, 2016, the Defendant did not, without good cause, enlist in the Army Training Center located in Seogu-gu, Daegu District Court on December 5, 2016, in which the Defendant received a notice of enlistment in active duty service under the name of the head of the Military Affairs Administration of Daegu and Chungcheongnam-gu, Chungcheongnam-si, Chungcheongnam-si, and that he will enlist in active duty service on December 8, 2016.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of Acts and subordinate statutes to a charge, a written accusation, a written statement of accusers, a notice of enlistment in active duty service, delivery status, and confirmation;

1. Determination as to the defendant's assertion on criminal facts under Article 88 (1) 1 of the pertinent Act, and the defendant's choice of imprisonment with labor

1. The gist of the assertion is that the Defendant refuses enlistment in the military according to his religious conscience as a female witness. Since such conscientious objection is guaranteed by the freedom of conscience guaranteed by the Constitution and the International Covenant on Civil and Political Rights, the Defendant’s refusal to enlistment constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

2. Determination:

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of an abstract military service and the confirmation of the performance of the duty itself. However, the grounds that justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as illness, etc., should be deemed to be limited to a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused the performance of the specific duty of military service is guaranteed by the Constitution of Korea, and the right has superior constitutional value that enables the legislative purpose of the above provision.

Even if it is recognized, if Article 88(1) of the Military Service Act is applied to the case, it would result in unfair infringement of his constitutional rights.