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

Punishment of the crime

A person who has received a written notice of enlistment in active duty service shall not be enlisted unless he/she is enlisted within three days from the date of enlistment without justifiable grounds.

Nevertheless, the Defendant, at the Defendant’s house located in Seo-gu Incheon, Seo-gu, Incheon on September 13, 2016, failed to enlist in the military for three days from the last three days from the date of the enlistment without justifiable grounds, even though he received a notice of enlistment in the active service under the name of the head of the Incheon Military Branch Office.

Summary of Evidence

1. Statement by the defendant in court;

1. C’s statement;

1. A written accusation;

1. Application of statutes to notification of enlistment in active duty service, and notification sent to the Military Manpower Administration;

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

1. The Defendant asserted that conscientious objection was made in accordance with a religious belief.

This constitutes “justifiable cause” to refuse enlistment 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 abstract military service and the recognition of its performance. However, it should be deemed that there is a reason to justify the nonperformance of the duty of military service that is specified by the decision of the head of the Military Affairs Administration, etc., such as illness, that is, a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused to perform 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 in cases where it is recognized, if 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 reasonable to view that there exists a justifiable reason to refuse to perform the duty of military service exceptionally in order to exclude such unconstitutional situation.

The freedom of conscience is passive omission.