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

Punishment of the crime

Upon receipt of a notice of enlistment in active service as a person subject to enlistment in the army, the enlistment shall be conducted within three days from the date of enlistment.

On July 19, 2016, the Defendant received a written notice of enlistment under the name of the director of the Daegu-do regional military manpower office to enlist in the 35th unit of the Army located in the Gu/Si/Eup/Myeon from August 30, 2016 at the residence of the Defendant who was permanently residing in C on July 19, 2016, but did not enlist until September 3, 2016 after three days from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Defendant's legal statement;

1. Application of Acts and subordinate statutes to the written accusation and accompanying documents;

1. The Defendant and his defense counsel refused to enlist in active duty service according to the religious belief and the right to conscientious objection is guaranteed by the Constitution, and thus, Defendant’s refusal to enlist in active duty service constitutes “justifiable cause” as prescribed by Article 88(1) of the Military Service Act. However, conscientious objection according to religious conscience does not constitute “justifiable cause” as provided for in the Military Service Act as an exception to punishment under the same Act (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004), and the above assertion is not accepted. The Defendant’s reason for sentencing is that the Defendant refuses enlistment according to religious faith and thus, it is difficult to expect that the Defendant will actually fulfill his duty of military service.

In such a situation, when a defendant is sentenced to a sentence of imprisonment with prison labor for less than one year and six months or a suspended sentence of such imprisonment with prison labor, considering the fact that the defendant is notified of enlistment at the same time and that the malicious circulation subject to criminal punishment is likely to repeat, the defendant is to be sentenced to a minimum sentence of exemption from military service. However, there is no possibility that the defendant might destroy evidence or flee, and thus the court's detention is not required