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

Punishment of the crime

On November 16, 2016, the Defendant was served with a notice of enlistment in active service under the name of the head of the Military Affairs Administration in the name of the head of the Military Affairs Administration of North Korea on December 27, 2016, and was served with a notice of enlistment in the military service on December 27, 2016, and on December 35, 2016.

Summary of Evidence

1. Statement by the defendant in court;

1. Written statements of D;

1. Application of the Acts and subordinate statutes to a written accusation, written confirmation of evasion of enlistment, and notice of enlistment;

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 the right to refuse enlistment according to religious conscience as E and belongs to the freedom of conscience guaranteed by Article 18 of the International Covenant on Civil and Political Rights and the Constitution, which constitutes “justifiable cause” under Article 88(1) of the Military Service Act and does not constitute an offense.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the recognition of its performance. However, it should be deemed that there is a reason to justify the nonperformance of the duty of military service that is specified by the decision of the head of the Military Affairs Administration, etc., such as illness, that is, a reason that is not attributable to the person who performed the duty 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 Korea, and the right has superior constitutional value that enables the legislative purpose of the above provision.

Even if it is recognized, if punishment is imposed by applying Article 88(1) of the Military Service Act, it would result in an undue infringement of his constitutional rights. In this case, in order to exclude such unconstitutional situation, it is deemed that there exists a justifiable reason to refuse to perform the duty of military service.