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

Punishment of the crime

The Defendant is a “B religious organization” person subject to enlistment in active duty service.

Although the Defendant received a notice of enlistment in active service from the Defendant’s mother on August 22, 2017 at the Defendant’s house located in the Gyeonggi-si building C building D, and on September 25, 2017, the Defendant failed to enlist without justifiable grounds until September 28, 2017, when three days have passed from the date of enlistment, despite the Defendant’s mother received a notice of enlistment in the military training center under the name of the head of Gyeonggi-do Office C building D to be enlisted in the Army Training Center.

Summary of Evidence

1. Statement by the defendant in court;

1. A written accusation;

1. A public notice of enlistment in active duty service;

1. Application of statutes governing receipt and certification of enlistment in active service;

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

1. The Defendant’s refusal to enlist in the military is conscientious objection and “justifiable cause to refuse enlistment”.

2. Determination

A. A. Religious and conscientious freedom is a relative freedom that can be restricted pursuant to Article 37(2) of the Constitution in a case where there exists a superior legal interest that justify such restriction. As such, Article 88(1) of the Military Service Act was prepared to specify the duty of national defense of the most fundamental citizen in the present situation where a division is in a decentralization, and as such, if the duty of military service is not properly performed and the national security is not performed, the dignity and value of the people’s human being cannot be guaranteed.

Therefore, the Defendant’s freedom of conscience cannot be deemed as superior value to the constitutional legal interest of guaranteeing dignity and value as a human being. Even if the Military Service Act restricts the Defendant’s religious and conscientious freedom, it is a justifiable restriction permitted under the Constitution (see, e.g., Supreme Court Decisions 2009Do7120, Oct. 5, 2009; 2004Do2965, Jul. 15, 2004). (b) Since conscientious objection is an generally recognized international law and is not accepted in Korea, conscientious objectors are not in accordance with the instant legal provision.