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

Punishment of the crime

Although the Defendant received a muster notice to enlist as an association’s new illness training from the Danin Military Manpower Administration by November 21, 2016, the Defendant did not enlist within three days from the specified day without justifiable grounds, even though he received a muster notice from the Danin Military Manpower Administration by December 6, 2016.

Summary of Evidence

1. Statement by the defendant in court;

1. A written accusation;

1. A notice of additional enlistment in active duty service and a list of active duty servicemen;

1. Details of transmission of postal items;

1. Notices sent to the Military Manpower Administration;

1. The application of Acts and subordinate statutes to certificates of facts, identification numbers, and identification numbers of women and witnesses;

1. Determination as to the defendant's assertion on criminal facts under Article 88 (1) 1 of the Military Service Act

1. The gist of the argument is that the Defendant, as a female witness and a new witness, refused to enlist in the army according to his religious conscience. This is based on the right belonging to the freedom of conscience and religion guaranteed by the Constitution, and thus does not constitute a crime as constituting “justifiable cause” under Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of an abstract military service and the confirmation of the performance of the duty itself. However, the grounds that justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as illness, etc., should be deemed to be limited to a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused the performance of the specific duty of military service is guaranteed by the Constitution of Korea, and the right has superior constitutional value that enables the legislative purpose of the above provision.

In addition, if punishment is imposed by applying Article 88(1) of the Military Service Act, it would result in undue infringement of his constitutional rights. In this case, to exclude such unconstitutional situation, there is a justifiable reason to refuse to perform his duty of military service.