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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 Jehovah’s Witness.
On February 6, 2015, the Defendant, as a person subject to enlistment in active duty service, failed to enlist after the lapse of three days from the date of enlistment on February 10, 2015, where he received a notice of enlistment in active duty service in the name of the director of the regional military manpower office in Gwangju-nam regional military manpower office on February 10, 2015.
Summary of Evidence
1. Defendant's legal statement;
1. Statement of the accuser or accuser;
1. In cases of domestic registration/exponing mail;
1. Application of Acts and subordinate statutes of notification of enlistment in active duty service;
1. The summary of the Defendant’s assertion on the Defendant’s assertion regarding criminal facts under Article 88(1)2 of the pertinent Act is the Jehovah’s Witness and refuses enlistment according to a religious conscience. This is based on the right belonging to the freedom of conscience guaranteed by the Constitution, and does not constitute a crime on the ground that it constitutes “justifiable cause” under Article 88(1) of the Military Service Act.
Judgment
A. “Justifiable reason” under Article 88(1) of the Military Service Act is, in principle, premised on the existence of abstract military service and the recognition of its performance. However, the reason why the nonperformance of the military service specified by the decision of the Commissioner of the Military Manpower Administration, such as illness, is not attributable to the person who failed to perform the military service. However, even in a case where the right of refusal to perform the specific military service is guaranteed by the Constitution of the Republic of Korea, and the above right has superior constitutional value to the legislative purpose of the above legal provision, if punishment is imposed by the application of Article 88(1) of the Military Service Act, it would result in undue infringement of his constitutional right. Thus, in this case, he refuses to perform the military service exceptionally to exclude such unconstitutional situation.