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

Punishment of the crime

Notwithstanding that the defendant is a person subject to enlistment in active service, through C residing together with the defendant at the defendant's house located in Seongbuk-gu Seoul and 401 on December 31, 2012, the defendant will be enlisted in the 306 supplementary military units located in the Gyeonggi-do Government on January 22, 2013.

“A person who received a written notice of enlistment in the name of the director general of the Seoul regional military manpower office, but did not enlist without justifiable grounds within three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Written statements of D;

1. A written accusation;

1. Notices sent to the Military Manpower Administration;

1. Application of Acts and subordinate statutes to an investigation report (C hearing of statements);

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

1. The Defendant alleged as “E” and refused to enlist in the military according to a religious conscience, and such conscientious objection is based on the right derived from the freedom of conscience as stipulated in Article 18 of the International Covenant on Civil and Political Rights and Article 19 of the Constitution of the Republic of Korea.

Therefore, the Defendant does not constitute “a person who fails to enlist without good cause” under Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act, which is a punishment provision for the act of refusing enlistment under Article 19 of the Constitution of the Republic of Korea, should, in principle, be deemed to be limited to a cause not attributable to the person with nonperformance, such as a disease, that is, a reason that may justify the non-performance of the duty specified on the premise of the existence of an abstract duty of military service and the acknowledgement of the performance of such duty

However, even if a person who refused to perform a specific obligation is recognized as having superior constitutional value to the right guaranteed by the Constitution of the Republic of Korea on the ground of his refusal, and furthermore, has superior constitutional value to the function of the legislative purpose of the above legal provision, he is punished by applying the above legal provision.