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

Criminal facts

On November 6, 2014, the Defendant received a notice of enlistment in the name of the director of the Daejeon District Military Manpower Office to enlistment in the Daejeon District Military Manpower Office on November 18, 2014, the Defendant failed to enlist in the military even three days after the date of enlistment, without justifiable grounds, even though he received a notice of enlistment in the name of the director of the Daejeon District Military Manpower Office.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of Acts and subordinate statutes governing an accusation, a written accusation, a parcel post inquiry, a notice, a fact-finding certificate, and military register inquiry;

1. Determination as to the Defendant’s assertion of criminal facts under Article 88(1)1 of the relevant Act

1. The gist of the assertion is that the Defendant refuses enlistment according to conscience based on a religious belief as a new witness. Such conscientious objection constitutes “justifiable cause” as prescribed by Article 18 of the International Covenant on Civil and Political Rights, which is based on the freedom of conscience guaranteed by Article 19 of the Constitution and Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, is, in principle, premised on the existence of an abstract military service and the confirmation of the performance of the duty itself. However, the reason that justify the nonperformance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, should be deemed to be limited to a reason that is not attributable to the non

B. However, even in cases where a person who refused to perform a specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and furthermore, even in cases where the right is deemed to have superior constitutional value to the function of legislative purpose of the above provision of the Military Service Act, if punished by applying Article 88(1) of the same Act, it would result in an undue infringement on his constitutional rights, and thus, it would be excluded from such unconstitutional situation.