2017 Highest 105 Violation of the Military Service Act

A

Whites (prosecutions) and Whites (public trials)

October 18, 2017

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

Criminal facts

The defendant is a person subject to enlistment in active duty service and is a faith of "B".

Around November 10, 2016, the Defendant received a notice of enlistment from the Defendant’s mother D to the Army Training Center located in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si on December 5, 2016 from the Defendant’s mother D’s house located in Chungcheongnam-do, Chungcheongnam-do, and did not enlist without justifiable grounds until three days pass from the date of enlistment. Accordingly, the Defendant avoided enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. A written accusation of E;

1. A written accusation, a name tag of persons evading military service, etc. and a notice on the progress of delivery;

Application of Statutes

1. Article applicable to criminal facts;

Article 88 (1) of the Military Service Act

Judgment on Defendant’s argument

1. Summary of the defendant's assertion

The Defendant, as a believers, refuses to perform the duty of military service according to religious conscience, has justifiable grounds and is not guilty as there is no intention to evade military service and there is no intention to evade military service.

2. Determination

The fundamental rights under the Constitution should be exercised within the scope that enables a community to lead a common life with others and that does not endanger other constitutional values and the legal order of the State, including the freedom of conscience. The freedom of conscience is a relative freedom that can be restricted by law pursuant to Article 37(2) of the Constitution in a case where there exists a constitutional legal interest to justify such restriction. Furthermore, Article 88(1) of the Military Service Act, which is a punishment provision for evading enlistment, is established to embody the duty of national defense, which is the most fundamental duty of the people, and if the State’s security is not fulfilled as such, the State’s dignity and value cannot be guaranteed. Accordingly, the duty of military service is ultimately aimed at ensuring the dignity and value of the entire citizens, and the freedom of conscience of conscientious objectors is superior to the above constitutional legal interests. Accordingly, even if the freedom of conscience of the defendant is restricted pursuant to Article 37(2) of the Constitution for the sake of legal interest of the Constitution, this cannot be seen as a legitimate restriction to a legislative person who refuses enlistment in active duty as well as a specific military duty soldier.

Reasons for sentencing

The defendant shall be punished with a minimum term of punishment for which he may be exempted from obligation to enlist in the military, and the defendant shall be sentenced to the punishment as per the order: Provided, That the defendant is not deemed to have destroyed evidence or may flee, and the statutory detention shall not be made.

Judges Oh Byung-hee