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 subject to call-up of social service personnel. On October 6, 2015, the Defendant received a notice of call-up of social service personnel under the name of the head of Incheon Byung-si Office, to enlist in the Army Training Center located in Solsan-si, Solsan-si, and from October 15, 2015 to April 14:00 of the same month.

Nevertheless, the Defendant, as a female witness, did not comply with the call without justifiable grounds, from the date of enlistment on the ground of religious belief to the 17th day of the same month after three days from the date of enlistment on the ground of religious belief.

Summary of Evidence

1. Partial statement of the defendant;

1. C’s statement;

1. Application of Acts and subordinate statutes to a written accusation, a notice of convening a social service personnel call, the dispatch of registration, and the notification sent to the Military Manpower Administration;

1. Determination as to the defendant's assertion on criminal facts under Article 88 (1) 2 of the Military Service Act

1. The Defendant, as a witness of Femalehovahovah’s Republic, refused to enlist in the army according to religious conscience.

Such conscientious objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. The “justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service and the existence of the performance of the duty itself, and the reason why it can justify the nonperformance of the duty specified, i.e., the reason why the nonperformance of the duty cannot be attributable to the person who committed the act.

However, it is guaranteed by the Constitution of Korea that a person who has refused to perform a specific duty has a superior constitutional value that functions as the legislative purpose of the above provision.

Even if it is recognized, if punishment is applied to the above legal provision, it would result in undue infringement of his constitutional rights. In this case, in order to eliminate such unconstitutional situation, the "justifiable cause" should be denied to him.