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 notice of enlistment in active duty service under the name of the head of the Jeju Regional Military Affairs Administration that “to be enlisted in the Army Training Center located in Chungcheongnam-gu, Chungcheongnam-do, 2015,” from the Defendant’s partner in the Defendant’s house located in Jeju-si, Jeju-si, and around November 15, 2015, the Defendant failed to enlist until November 12, 2015, for which three days have passed from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. A written statement of accuser C;

1. Application of the official document of notification of additional enlistment in active duty service, list of those who have notified enlistment in active duty service, registration delivery status, and official document of accusation of those who evade enlistment in active duty service;

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

1. The Defendant’s assertion asserts that he refused to enlist in active duty service as a believers of the D Religious Organization based on a religious belief, and this is guaranteed by the freedom of conscience under the Constitution and the International Covenant on Civil and Political Rights. As such, the Defendant’s refusal to perform the duty of military service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. Determination

A. Article 88(1) of the Military Service Act is a legal provision enacted to restrain evasion of enlistment and enforce the formation of military force, which is a foundation of national security, as a matter of principle, “justifiable cause” under the above legal provision is premised on the existence of abstract military service and the confirmation of its performance. However, it should be deemed that there is a ground to justify the non-performance of military service specified by the decision of the head of the Military Affairs Administration, etc., i.e., a disease, etc., that is, a cause not attributable to the person who committed the non-performance of military service.

However, the right of a person who has refused to perform the specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and further the right is guaranteed by the above provision of the law.