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A defendant shall be punished by imprisonment for not less than one year and six months.
Reasons
Criminal facts
On November 12, 2012, the Defendant received a notice of enlistment in active service from the Defendant’s house located in Yongcheon-si B to the Army Training Center located in Seocheon-si, Seocheon-si on December 31, 2012.
Nevertheless, the defendant did not enlist in the military even three days after the date of enlistment without justifiable grounds.
Summary of Evidence
1. Partial statement of the defendant;
1. A written accusation;
1. Application of statutes governing enlistment in active duty service;
1. As to the Defendant’s assertion on criminal facts under Article 88(1) of the pertinent Article of the Military Service Act, the Defendant asserts that there exists “justifiable cause” that may refuse to perform the duty of military service under Article 88(1) of the Military Service Act, since the Defendant refuses to enlist in active service against the freedom of conscience and religion.
However, the exercise of all fundamental rights, including the freedom of conscience and the freedom of religion, should be carried out within a community within the scope that enables a common life with others and does not endanger other constitutional values and the legal order of the State. In the event that there exists a constitutional legal interest to justify the restriction, such as the freedom of conscience, it is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution.
On the other hand, the duty of military service is the most fundamental duty to ensure the existence and security of the State, which should be premised on the national security, but the fundamental rights of the people, including the freedom of conscience, can be realized and protected, and more, considering the special reality of the Republic of Korea where the two Koreas are divided, the duty of national defense is more emphasized.
In the end, the defendant's freedom of conscience and religion can only be restricted for the greater constitutional legal interest of national security, and such restriction is justified as constitutional law permits.
Therefore, the defendant's freedom of conscience and religion.