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

Punishment of the crime

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

The Defendant, through e-mail around October 19, 2013, received a notice of enlistment in active service under the name of the director of the regional military manpower office in Gwangju, to enlistment in the 31st group located in Gwangju, by December 3, 2013, and did not enter the military service even three days after the date of enlistment without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of Acts and subordinate statutes to file complaints against persons evading enlistment in active duty service, lists of persons evading enlistment, and e-mail notices;

1. Determination as to the assertion of the defendant and his defense counsel under Article 88(1)1 of the relevant Act on criminal facts

1. The gist of the assertion was that the Defendant refused to enlist in the military according to a religious conscience as the believers’s believers. This constitutes a “justifiable cause” under Article 18 of the International Covenant on Civil and Political Rights and Article 88(1) of the Military Service Act, which is a right belonging to the freedom of conscience guaranteed by the Constitution.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the recognition of its performance. However, the reason why the nonperformance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, is not attributable to the person who failed to perform the military service. However, even in a case where the right of refusal to perform the specific military service is guaranteed by the Constitution of the Republic of Korea, and the above right is recognized as having superior constitutional value to the legislative purpose of the above provision, if punishment is imposed by the application of Article 88(1) of the Military Service Act, it would result in undue infringement of his constitutional right. Thus, in this case, the duty of military service shall be performed exceptionally to avoid such unconstitutional situation.