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 enlistment in active duty service and is a new witness of women and children.

On November 11, 2015, the Defendant received a written notice of enlistment in active service under the name of the head of the Military Affairs Administration in order to the effect that the Defendant was “be enlisted in the army as a supplement to 102 in the Yongsan-gu Incheon Metropolitan City, Gangwon-do, Incheon Metropolitan Government, on December 15, 2015.”

Nevertheless, the defendant did not enlist in the military without justifiable grounds until December 18, 2015, for which three days have passed from the date of the above enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Service, such as a written accusation (in active duty service and a person refusing to complete collection of office);

1. Application of the statutes governing the progress of notification delivery, enlistment in active duty service, and notification;

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

1. The gist of the assertion is that the Defendant, as a female witness, refused to enlist in the army 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 does not constitute a crime.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the confirmation of the performance of the duty itself. However, the reason 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, should be deemed to be limited to a cause not attributable to the person who committed the duty of military service.

On the other hand, however, the right of a person who refused to perform the specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and the right has superior constitutional value to the function of the legislative purpose of the above provision of the law.

Even if it is recognized, if Article 88(1) of the Military Service Act is applied to the case, it would result in unfair infringement of his constitutional rights.