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

Punishment of the crime

On November 8, 2013, the Defendant issued a notice of enlistment in active duty service under the name of the director of the Incheon Gyeonggi-si regional military manpower office to enlistment in the Army Training Center located in Pyeongtaek-si, Seosan-si on December 9, 2013 at the Defendant’s residence located in Pyeongtaek-si, B apartment 103 Dong 703, and did not enlist without justifiable grounds until December 12, 2013 after three days from the date of enlistment.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of Acts and subordinate statutes to the accusation book, military register inquiry, notification of enlistment in active duty service, and list of persons enlisted for military service;

1. Determination as to the Defendant’s assertion on criminal facts under Article 88(1)1 of the Military Service Act

1. The Defendant asserted that he refused to enlist in active duty service according to one’s conscience as a believers of “novah’s Witness.” Since the right to conscientious objection is guaranteed pursuant to Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights incorporated into domestic law, the Defendant’s exercise of the right to conscientious objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable reason” under Article 88(1) of the Military Service Act means a justifiable reason under Article 88(1) of the same Act is, in principle, premised on the existence of an abstract duty of military service and the confirmation of the performance of such duty itself. However, a reason that may justify the nonperformance of the duty of military service specified by the decision of the Commissioner of the Military Manpower Administration, i.e., illness, or any other reason that cannot be attributable

(See Supreme Court Decision 2003Do5365 Decided December 26, 2003, etc.). However, in cases where a person who refuses to perform a specific duty of military service is guaranteed by the Constitution of the Republic of Korea, and the right is recognized as having superior constitutional value to fulfill the legislative purpose of Article 88(1) of the Military Service Act, even in cases where such right is recognized as having superior constitutional value to the above legal provision, the Constitution of the Republic of Korea shall apply thereto.