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수원지방법원 성남지원 2015.11.11 2015고단1715
병역법위반
Text

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

Reasons

Punishment of the crime

The defendant is a witness witness in Jehovahovah.

On April 29, 2015, the Defendant directly received a written notice of enlistment in the name of the director of the Incheon Gyeonggi Military Manpower Office to be admitted from the Defendant’s domicile on May 26, 2015 at the address of Sungnam-si, Sungnam-si B apartment, 102 Dong 1105, and did not enter the Incheon Gyeonggi Military Manpower Office by not later than three days after the date of admission without justifiable grounds.

Summary of Evidence

1. Defendant's legal statement;

1. C’s statement;

1. A written accusation;

1. Application of statutes to a copy of a certificate of enlistment notice;

1. The Defendant asserts that the reasoning for determination and sentencing of the Defendant’s argument regarding criminal facts under Article 88(1)1 of the pertinent Act is “syhovah’s Witness” and that the Defendant’s refusal to enlist according to religious conscience and thus constitutes justifiable cause under Article 88(1) of the Military Service Act.

The duty of military service, one of the citizens’ duty of national defense under Article 39(1) of the Constitution, is the most fundamental requirement for the existence of a community, and ultimately, is to ensure the dignity and value of all citizens as human beings. Thus, when the freedom of conscience realization conflicts with such duty of military service, it may be restricted by law pursuant to Article 37(2) of the Constitution, and such freedom of conscience realization may be subject to justifiable restriction permitted under the Constitution (see, e.g., Supreme Court en banc Decision 2004Do2965, Jul. 15, 2004; Constitutional Court en banc Decision 2002HunGa1, Aug. 26, 2004; Supreme Court Decision 2007Do3795, Jul. 12, 2007). Inasmuch as the freedom of conscience is guaranteed by the Constitution, it is difficult to deem that there exists any justifiable reason to refuse the Defendant to perform the duty of military service.

The defendant is the first offender, and the refusal of enlistment by the defendant is based on religious belief.

In order to prevent the defendant from being subject to repeated punishment by refusing to enlist again after receiving a written notice of enlistment, the defendant shall be the second citizen service.