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 30, 2015, the Defendant received a notice of enlistment in active duty service under the name of the head of the Military Affairs Administration of Gwangju Nam-gu, that he will enlist in the Army Training Center located in Chungcheongnam-gu, Chungcheongnam-do, from October 30, 2015 to November 14:00.

Nevertheless, the defendant did not enlist until December 2, 2015, for which three days have passed from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation;

1. Application of Acts and subordinate statutes to the prosecution of those who evade enlistment in active duty service, the Military Manpower Administration of the Gwangju Military Manpower Administration and the history of evading enlistment;

1. The Defendant and his defense counsel on the assertion of the Defendant and defense counsel regarding criminal facts under Article 88(1)1 of the pertinent Act concerning the assertion of the Defendant and defense counsel. The Defendant, as “C”, refused enlistment in active duty service according to religious conscience, and such right to refuse military service is guaranteed by Article 19 of the Constitution. Thus, the Defendant asserts that there exists a justifiable reason for refusing military service under Article 88(1) of the Military Service Act.

However, the Constitutional Court decided that Article 88(1) of the Military Service Act, which is a provision punishing evasion of enlistment, does not violate the Constitution (see, e.g., Constitutional Court Decision 2008Hun-Ga22, 2008Hun-Ga7, 2009Hun-Ga7, 2009Hun-Ba 7, 2010Hun-Ba 103, 2009Hun-Ba 3, 2011Hun-Ba 16, etc.). The duty of military service is ultimately aimed at ensuring the dignity and value of all citizens through national security, and the freedom of conscience of conscientious objectors is more superior to the above constitutional legal interests. Thus, even if the freedom of conscience of the defendant is restricted pursuant to Article 37(2) of the Constitution for the sake of the above constitutional legal interests, this is a justifiable restriction (see, e.g., Supreme Court Decision 2005Do754, Jul. 26, 2005).