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

Punishment of the crime

On November 5, 2016, the Defendant, through the Defendant’s personal e-mail, failed to enlist at the 35 association located in the Gu/Si/Gun in the former North Korean on December 20, 2016, upon receipt of a written notice of enlistment under the name of the Administrator of the Military Affairs Administration in the Daejeon-nam District Office, to which the Defendant would enlist, without justifiable grounds, within three days from the date of enlistment.

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

1. The gist of the Defendant’s assertion is “B religious organizations” and thus, the Defendant refused to enlist in active duty service according to the order of conscience in accordance with the religious doctrine, and the conscientious objection according to conscience is justifiable act that conforms to the Constitution and international norms, and thus, does not constitute a violation of the Military Service Act.

2. Article 88(1) of the Military Service Act that punishs the act of evading enlistment in the military service does not violate the Constitution (see, e.g., Constitutional Court Order 2002Hun-Ga1, Aug. 26, 2004; Constitutional Court Order 2008Hun-Ga2, Aug. 30, 201). In addition, the so-called conscientious objection based on one’s conscience does not constitute “justifiable cause” as provided by the exception of punishment under the above Military Service Act, and punishment does not violate the freedom of conscience under Article 19 of the Constitution.

B. A. Article 18 of the International Covenant on Civil and Political Rights, in which Korea is a member of the Republic of Korea, does not derive the right to be exempted from the application of the above provisions of the Military Service Act, but does not have any legal binding force even if the United Nations Commission on Freedom of Freedom proposed a recommendation (see Supreme Court Decision 2016Do12346, Nov. 10, 2016). Accordingly, the Defendant’s assertion that conscientious objection according to conscience is not a legitimate act consistent with the Constitution and international norms and is not a violation of the Military Service Act is rejected.