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

Punishment of the crime

On April 29, 2016, the Defendant was served with a notice of enlistment in the Army Training Center under the name of the director of the regional military manpower office prior to the date of enlistment, and on June 7, 2016, the Defendant did not, without justifiable grounds, enlist in the military within three days after the date of enlistment.

Summary of Evidence

1. Defendant's legal statement;

1. Application of the Acts and subordinate statutes on the written accusation;

1. As to the Defendant’s assertion regarding criminal facts under Article 88(1)1 of the pertinent Article of the Military Service Act, the Defendant asserts that the right to refuse military service is a right protected by Article 18 of the International Covenant on Civil and Political Rights and Article 19 of the Constitution. As such, the Defendant asserts that there exists a justifiable reason for refusing enlistment for religious reasons.

The freedom of conscience formation, from among the freedom of conscience as stipulated in Article 19 of the Constitution, which remains in the inner trial, cannot be restricted to what is, and thus, subject to absolute protection. On the other hand, the freedom of conscience realization in the stage where such formed conscience externally expressed and realized is a relative freedom and may be restricted by law in cases where it violates legal order itself or conflicts with other constitutional values. As such, the freedom of conscience realization, one of the citizens’ duty of national defense under Article 39(1) of the Constitution, is the most fundamental requirement for the existence of a community, and ultimately, is to guarantee the dignity and value of all citizens as human beings. Thus, when the freedom of conscience realization conflicts with that of military service, it may be restricted by law pursuant to Article 37(2) of the Constitution, which is a legitimate restriction permitted under the Constitution.

(See Supreme Court Decision 2007Do3795 Decided July 12, 2007). Meanwhile, Article 18 of the International Covenant on Civil and Political Rights is the freedom of conscience under Article 19 of the Constitution of the Republic of Korea and Article 20 of the Constitution.