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

Punishment of the crime

A person who has received a written notice of enlistment in active duty service shall not enlist within three days from the date of enlistment without justifiable grounds.

Nevertheless, the Defendant, on September 30, 2014, did not enter the military service by not later than three days after the date of enlistment without justifiable grounds, solely on the ground that he is a female witness, even though he received a muster notice under the name of the director of the Seoul Regional Military Manpower Administration on November 4, 2014 from the date of enlistment in the Geumcheon-gu Seoul Metropolitan Government.

Summary of Evidence

1. Partial statement of the defendant;

1. A protocol concerning the examination of partial police officers of the accused;

1. A written accusation;

1. Application of Acts and subordinate statutes of notification of enlistment in active service;

1. As to the Defendant’s assertion on criminal facts under Article 88(1)1 of the pertinent Act, the Defendant asserts that there exists “justifiable cause” under Article 88(1) of the Military Service Act, since he/she refused enlistment according to his/her religious doctrine and conscience as a new witness.

The Constitutional Court made a decision that Article 88(1) of the Military Service Act, which is a provision punishing the act of evading enlistment, does not violate the Constitution (see, e.g., Constitutional Court Order 2008Hun-Ga22, Aug. 30, 201). The conscientious objection based on conscience does not constitute “justifiable cause” as provided for the exception of punishment under the foregoing provision, and even from the provision of Article 18 of the International Covenant on Civil and Political Rights to which the Republic of Korea is a party, the right to be exempted from the application of the above provision of the Military Service Act to conscientious objectors pursuant to conscience is not derived, and the United Nations Commission on Freedom of Rights proposed recommendations

Even if this does not have any legal binding force (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004; Supreme Court Decision 2007Do8187, Nov. 29, 2007; Supreme Court Decision 2014Do4915, Jun. 26, 2014). Accordingly, the Defendant’s assertion is rejected.

The reason for sentencing.