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 written notice of enlistment in active duty service under the name of the head of the Military Affairs Administration of Gangwon-do, the Defendant was subject to enlistment on September 22, 2014, to the effect that “I will be enlisted in the 306 supplementary unit located in the 416th Office located in the territory of the Government of the Republic of Korea as of November 25, 2014,” from his home located in Gangwon-do, Gangwon-gun B, Seoul-gun, the Defendant failed to enlist until three days after the date of enlistment without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation;

1. Application of Acts and subordinate statutes to notification of enlistment in active duty service (reserve service) during November 2014, and notification sent to the Military Manpower Administration;

1. As to the assertion of the Defendant and his defense counsel regarding criminal facts under Article 88(1)1 of the pertinent Act, the Defendant and the defense counsel asserted that the Defendant’s defense counsel refused enlistment in accordance with the order of conscience as a new witness in accordance with the religious doctrine, which constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

"Justifiable reason" under Article 88 (1) of the Military Service Act, which is a punishment provision for refusal of enlistment, is, in principle, premised on the existence of abstract military service and the confirmation of the performance of such duty itself. However, the reason that can justify the non-performance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as illness, should be deemed to be limited to the reason that the non-performance of the duty of military service is not attributable to the person who committed the non-performance of the duty of military service, such as illness. On the other hand, on the other hand, the right of a person who refused to perform the duty of military service is guaranteed by the Constitution of Korea,

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