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

Punishment of the crime

The Defendant is liable for military service.

On April 26, 2016, the Defendant: (a) “B and 204 in Seoul Special Metropolitan City, Gwanak-gu, Seoul; (b) enlisted in the military according to the 32th group of Scadinal Education in Sejong-si on May 24, 2016; and (c) received a written notice of enlistment in the active duty service under the name of the director of the Seoul Regional Military Manpower Office, but did not immediately enlist until May 26, 2016, for religious belief, from which three days have passed since the date of enlistment on the ground of religious belief.”

Summary of Evidence

1. Defendant's legal statement;

1. Notice of a written accusation, a written accusation (C), and a person subject to enlistment in active duty service;

1. Application of Acts and subordinate statutes to notifications and certificates of fact sent to the Military Manpower Administration;

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 that the Defendant refused to enlist in active service according to a religious conscience as a witness with the “novahovah’s Witness” and such conscientious objection is guaranteed by the freedom of conscience under the Constitution and the International Covenant on Civil and Political Rights. As such, there exists “justifiable cause” under Article 88(1) of the Military Service Act to refuse the enlistment of the Defendant.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act is, in principle, based on the existence of an abstract duty of military service and the recognition of the performance of the duty itself, and the reason that can justify the nonperformance of the duty specified, i.e., a cause not attributable to the non-performance of the duty, such as a disease, should

However, even in cases where a person who refused to perform a specific obligation is guaranteed by the Constitution of the Republic of Korea, and furthermore, 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 of his/her constitutional rights, and thus, such an unconstitutional situation shall be excluded.