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

Punishment of the crime

The defendant is a religious organization believers who is subject to enlistment in active duty service.

On June 10, 2013, the Defendant received a written notice of enlistment in the name of the director of the regional military manpower office of the Incheon Gyeonggi-gu Army Training Center on July 29, 2013 from the Defendant’s residence of the Nam-gu Incheon Metropolitan City C apartment 1, 801 Dong-gu, Incheon, and 801, the Defendant did not enlist within three days from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

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

1. As to the Defendant’s assertion on criminal facts under Article 88(1)1 of the pertinent Article of the Military Service Act, the Defendant, as a believers of religious organizations, refused to enlist in active duty service according to religious conscience. Since such right is guaranteed by the freedom of conscience under Article 19 of the Constitution, the Defendant asserts that there exists a justifiable reason under Article 88(1) of the Military Service Act (hereinafter “instant legal provision”).

However, the "justifiable cause" in the legal provision of this case is, in principle, premised on the existence of abstract military service and the confirmation of its performance itself, but it should be deemed that there is a cause that can justify the non-performance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, i.e., a cause that does not occur to the non-performance of the military service

(See Supreme Court Decisions 67Do677 delivered on June 13, 1967 and 2003Do5365 delivered on December 26, 2003). However, even in cases where a person who refused to perform a specific duty of military service is recognized as having superior constitutional value to the legislative purpose of the legal provision of this case, if he/she is punished by applying the legal provision of this case, it would result in an undue infringement of his/her constitutional rights, and thus, such situation is unconstitutional.