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 in active duty service.

On October 1, 2015, the Defendant issued a notice of enlistment in active duty service under the name of the head of the Jeju Regional Military Affairs Administration to the effect that the Defendant will enlist in the Army Training Center located in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si by November 9, 2015, and did not comply with the call without justifiable grounds, even if he received by e-mail a notice of enlistment in active duty service under the name of the head of the Jeju Regional Military Affairs Administration, from the date of call.

Summary of Evidence

1. Partial statement of the defendant;

1. A written statement that is the accusation of D;

1. A written notice of enlistment in active duty service, a list of those who have notified enlistment in active duty service, a written consent to receipt of e-mail enlistment;

1. Application of Acts and subordinate statutes sent to the Military Manpower Administration;

1. Determination as to the assertion by the accused and the defense counsel regarding criminal facts under Article 88(1)1 of the pertinent Act

1. The gist of the Defendant and his defense counsel’s assertion was that the Defendant refused to enlist in active duty service according to the determination of a religious conscience based on religious belief as a believers of the Defendant and defense counsel. This constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. Determination

A. Article 88(1) of the Military Service Act is a legal provision enacted to restrain evasion of enlistment and enforce the formation of military force, which is a foundation of national security, as a matter of principle, “justifiable cause” under the above legal provision is premised on the existence of abstract military service and the confirmation of its performance. However, it should be deemed that there is a ground to justify the non-performance of military service specified by the decision of the head of the Military Affairs Administration, etc., i.e., a disease, etc., that is, a cause not attributable to the person who committed the non-performance 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 the Republic of Korea, and the right has superior constitutional value to the function of the legislative purpose of the above provision.

Even if it is recognized, the above legal provision shall also apply.