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

Punishment of the crime

The Defendant was a “B religious organization,” and the Defendant received directly a notice of enlistment in active duty service in the name of the director of the Chungcheong Military Manpower Office to enlist in the D office located in Chungcheongnam-do, Chungcheongnam-dong, Chungcheongnam-do, around 14:03 on June 29, 2016, and as in filling 102 in the 14:00 on August 23, 2016, the Defendant failed to enlist in the military without justifiable grounds until August 26, 2016, which was three days after the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement of accuser prepared by E;

1. Determination 1 on the Defendant’s argument regarding the enlistment notice in active duty service and the application of the draft notice to the enlistment (Article 88(1)1 of the Military Service Act. The gist of the argument is that the Defendant refused to enlist in active duty according to a religious conscience. Such conscientious objection not only is guaranteed pursuant to Article 18 of the Freedom of conscience under the Constitution and the International Covenant on Civil and Political Rights, but also can be derived from generally approved international laws and regulations.

Therefore, Defendant’s objection to military service constitutes “justifiable cause” under Article 88(1) of the Military Service Act, and thus, Defendant cannot be deemed to have violated the Military Service Act.

2. The phrase “justifiable cause” under Article 88(1) of the Military Service Act shall, in principle, be deemed to be based on the existence of an abstract duty of military service and the recognition of the performance of such duty itself, but it shall be deemed that there is a cause not attributable to the person with nonperformance, such as a disease, that is, a reason to justify the nonperformance of such duty

However, even in cases where a person who has refused to perform a specific obligation 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, if punishment is imposed by applying the above provision, it would result in an undue infringement on his/her constitutional rights, so this situation is unconstitutional.