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

Punishment of the crime

The defendant is a new person who is subject to enlistment in active duty service as B.

The Defendant, as of September 1, 2017, failed to enlist in the military by not later than three days after the date of enlistment without justifiable grounds, even though he received a notice of enlistment in the name of the head of the regional military affairs office of Gwangju, that he will be enlisted as an association located in the Northwest-gun of Hongcheon-gun, Hongcheon-gun, Gangwon-do as of October 16, 2017.

Summary of Evidence

1. Partial statement of the defendant;

1. A copy and a list of official notices of enlistment in active duty service;

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 Defendant asserts that, as “B” faith, he refused to enlist in the military according to his religious conscience, and such right to refuse military service is guaranteed by the rules and the Constitution of the Republic of Korea, the Defendant’s refusal to enlist in the active service constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the recognition of its performance. However, it should be deemed that there is a reason to justify the nonperformance of the duty of military service that is specified by the decision of the head of the Military Affairs Administration, etc., such as illness, that is, a reason that is not attributable to the person who performed the duty of military service. However, the right of a person who refused to perform 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.

In addition, if punishment is imposed by applying Article 88(1) of the Military Service Act to the case of recognition, it may result in an undue infringement of his constitutional rights. In this case, there is a justifiable reason to refuse to perform his duty of military service exceptionally in order to exclude such unconstitutional situation.