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

Punishment of the crime

The Defendant is a person in active duty service.

On January 2, 2017, the Defendant received a notice of enlistment in active duty service under the name of the Administrator of the Military Manpower Administration of Daejeon Chungcheongnam-gu, Daejeon District Military Manpower Administration on February 6, 2017, to enlistment in the Army Training Center as a person on February 6, 2017, the Defendant failed to enlist until February 9, 2017, when three days have passed from the date of enlistment, without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

1. Application of Acts and subordinate statutes governing a person who evaded military service, a written accusation, and a certificate of enlistment notice;

1. Determination as to the defendant's assertion on 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 the military according to his religious conscience. This constitutes a “justifiable cause” under Article 88(1) of the Military Service Act, which is based on the right belonging to the freedom of conscience guaranteed by the Constitution, and thus does not constitute a crime.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of an abstract military service and the confirmation of the performance of the duty itself. However, the grounds that justify the nonperformance of the duty of military service specified by the decision of the head of the Military Affairs Administration, such as illness, etc., should be deemed to be limited to a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused the performance of 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 if 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, in order to eliminate such unconstitutional situation, it is deemed that there exists a justifiable reason to refuse to perform the duty of military service.