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

Criminal facts

The defendant is the believers of religious organization B.

Upon receipt of a notice of enlistment as a person in active duty service, the defendant shall enlist within three days from the date of enlistment.

Nevertheless, the Defendant, on October 28, 2017, received a notice of enlistment to the Army Training Center on December 26, 2017 by e-mail (C) around October 28, 2017, and failed to enlist without justifiable grounds by October 30, 2017, even though the above notice was confirmed on October 30, 2017.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of the Acts and subordinate statutes on the written accusation;

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, as the believers of the religious organization B, refused to enlist in active duty service according to his religious belief or conscience.

Such refusal of military service is guaranteed by Articles 19 and 20 of the Constitution that provides the freedom of conscience and religion.

Therefore, the Defendant’s refusal of military service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. The fact that the exercise of fundamental rights under the Constitution ought to be carried out to the extent that it enables people to live a community with others within a State community and does not endanger other constitutional values and the legal order of the State is the fundamental limitation of the exercise of all fundamental rights, including the freedom of conscience or the freedom of religion.

In other words, the freedom of conscience or the freedom of religion is a relative freedom that can be restricted by law in accordance with Article 37, Paragraph 2 of the Constitution if there is a constitutional legal interest to justify the restriction.

On the other hand, Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, has been prepared to specify the duty of national defense, which is the most fundamental duty of the people, and if such duty of military service is not properly performed and the national security is not performed, it can be guaranteed the dignity and value as human beings.