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서울동부지방법원 2017.04.14 2017고단216
병역법위반
Text

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

Reasons

Punishment of the crime

The Defendant, “novahovah’s Witness,” as a person subject to enlistment in active duty service, was the Defendant’s house located in Gangdong-gu Seoul Metropolitan Government B and 110 Dong 901 around October 4, 2016, and was delivered to the Army Training Center on November 28, 2016 to the Army Training Center by the head of the Seoul Regional Military Affairs Administration, but did not enlist for three days from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

1. A written accusation;

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 assertion is that the Defendant refuses enlistment in the military according to his religious conscience as a female witness. Since such conscientious objection is guaranteed by the freedom of conscience guaranteed by the Constitution and the International Covenant on Civil and Political Rights, the Defendant’s refusal to enlistment constitutes “justifiable cause” as prescribed by 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.

Even if it is recognized, if a punishment is imposed by applying Article 88(1) of the Military Service Act, it would result in an undue infringement on his constitutional rights. In this case, it is exceptionally intended to exclude this unconstitutional situation.

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