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

Punishment of the crime

The defendant is a witness of Hohovah, who is subject to enlistment in active duty service.

On September 20, 2017, the Defendant: (a) from the Defendant’s house located in the 11-dong 104-dong apartment B around 2017, “to be enlisted in the Army Training Center located in the Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si; (b) received the notice of enlistment in active duty under the name of the mother of the Defendant through C, the mother of the Defendant, but failed to enlist within three days from the date of the enlistment without justifiable grounds.

Summary of Evidence

1. Statement by the defendant in court;

1. Written statements of D;

1. A written accusation, a notice of enlistment in active duty service, a list of persons not enlisted in active duty service, and an inquiry about postal delivery;

1. Application of Acts and subordinate statutes to confirm facts;

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 argument is that the Defendant refused to enlist in active duty service according to a religious conscience as a witness of the Jehovah, and such right to refuse to serve in active duty service is not only the right guaranteed by Article 19 of the Constitution or Article 18 of the United Nations’s “International Covenant on Civil and Political Rights” but also the UN Commission on the Freedom of Civil and Political Rights determines that punishment for conscientious objectors violates Article 18 of the International Covenant on Civil and Political Rights. Thus, the Defendant’s refusal to serve in active duty service constitutes “justifiable cause” as stipulated in Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service and the existence of the performance of the duty itself, and the reason why it can justify the nonperformance of the duty specified as such, i.e., the reason why the nonperformance of the duty cannot be attributable to the person who committed the act.

However, a person who has refused to fulfill a specific obligation is guaranteed by the Constitution of the Republic of Korea, and furthermore, the right is superior to the legislative purpose of the above provision.