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수원지방법원 안산지원 2013.09.26 2013고단1728

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, at around May 25, 2013, was served with a notice of enlistment in active duty service with the director of the Gyeonggi Military Manpower Office serving in the Army Training Center located in Chungcheongnam-gu, Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do as of July 1, 2013, and was served with a notice of enlistment in active duty service at the time of the lapse of three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of a charge, a written accusation, a copy of the notice of enlistment in active duty service, and statutes;

1. Determination as to the assertion of the defendant and his defense counsel under Article 88(1)1 of the relevant Act on criminal facts

1. The gist of the assertion is that the Defendant, as a believers of “D Religious Organizations”, did not enlist in the military according to religious belief or conscience, and there are justifiable grounds for refusal of enlistment.

2. Article 88(1) of the Military Service Act was prepared to specify the duty of national defense of the most fundamental citizen, and it is clear that the dignity and value as human beings cannot be guaranteed if the duty of military service is not fulfilled properly and the national security is not ensured.

Therefore, the duty of military service ultimately aims to ensure the dignity and value of all citizens as human beings, and thus, the freedom of conscience of defendants is restricted in accordance with Article 37(2) of the Constitution for such constitutional legal interests.

This is a legitimate restriction permitted under the Constitution.

Furthermore, in order to secure the performance of military service, a broad legislative discretion has been reserved in regard to whether punishment is imposed on a person refusing enlistment in active service, and whether to recognize alternative military service. As such, even if a person refusing enlistment in active service on the grounds of conscience and religious freedom has a provision imposing punishment without any special exception instead of alternative enlistment in active service, the principle of excessive prohibition or proportion should be applied.