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

Punishment of the crime

On July 15, 2015, the Defendant received a notice of enlistment in active duty service under the name of the head of the Military Affairs Administration in the name of the Sincheon-gu Military Affairs Administration on September 1, 2015, to enlistment by e-mail in the 102 supplementary unit located in the Sincheon-si, Chungcheongnam-gu, Sungnam-gu, Sungnam-si, the Defendant failed to enlist without justifiable grounds even though three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Written statements of D;

1. Accusation against the person evading military service (the enlistment and the refusal of the total enlistment);

1. Management of e-mail notices, inquiry into military register, and application of statutes of notification of enlistment in active service;

1. Determination as to the assertion by the defendant and his defense counsel regarding criminal facts under Article 88 (1) 1 of the Military Service Act

1. The Defendant alleged that he was “Wooh’s Witness” and refused to enlist in the army according to a religious doctrine and conscience. Since such right to refuse military service is guaranteed pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights, the Defendant’s refusal to enlist in the army is “justifiable cause” under Article 88(1) of the Military Service Act.

2. According to the current positive law that does not provide a special exception to enlistment for a person who refuses enlistment in active duty service on the grounds of freedom of conscience, the grounds alleged by the Defendant do not constitute justifiable grounds for not enlistment in active duty service (see, e.g., Supreme Court Decision 2004Do2965, Jul. 15, 2004; Constitutional Court Decision 2008Hun-Ga22, Aug. 30, 201; etc.). Moreover, from the provisions of Article 18 of the International Covenant on Civil and Political Rights to which the Republic of Korea is a member, the right to be exempted from the application of the said provision is not derived, and even if the United Nations Commission on Freedom of Civil and Political Rights proposed recommendations to the conscientious objectors, this does not have any legal binding force (see, e.g., Supreme Court Decision 2013Do9714, Oct. 24, 2013).