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

Punishment of the crime

No person who has received a written notice of enlistment in active duty service shall enlist in the military even though the period of three days from the date of enlistment without justifiable grounds.

Nevertheless, on June 8, 2016, the Defendant, at the Defendant’s house located in Seongbuk-gu Seoul Special Metropolitan City C and B01, did not enlist in the military service until July 28, 2016, when the Defendant received a written notice of enlistment in the military service and three days passed from July 25, 2016.

Accordingly, even after receiving the written enlistment notice, the Defendant did not enlist within three days from the date of enlistment without justifiable grounds.

Summary of Evidence

1. Entry of the defendant in part in the first trial record;

1. Written statements of D;

1. Notice of an accusation and additional enlistment in active duty service, inquiries about post offices registration, and application of Acts and subordinate statutes regarding military register inquiries;

1. Determination as to the assertion by the defendant and his defense counsel regarding criminal facts under Article 88 (1) 1 of the Military Service Act

1. The gist of the assertion is that the Defendant refused enlistment in order to realize the freedom of religious conscience guaranteed by the Constitution. Therefore, there is no justifiable ground for evading enlistment as prescribed by Article 88(1) of the Military Service Act, and there is no possibility for expecting lawful acts.

One Part "International Covenant on Civil and Political Rights" is generally effective as an approved international law, and the right to refuse military service is recognized pursuant to Article 18 of the above Covenant.

2. The Constitutional Court rendered a decision that Article 88(1) of the Military Service Act, which is a provision punishing the act of evading enlistment, does not violate the Constitution (see, e.g., Constitutional Court Order 2002Hun-Ga1, Aug. 26, 2004; Constitutional Court Order 2008Hun-Ga22, Aug. 30, 201). The Supreme Court does not constitute “justifiable cause” as provided for the exception of punishment under the above provision, and Article 18 of the International Covenant on Civil and Political Rights to which the Republic of Korea is a member.