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

Punishment of the crime

The Defendant is a “novahovah Witness” and is a person subject to enlistment in active duty service.

On November 1, 2015, the Defendant received a notice of enlistment from the head of the Incheon Military Affairs Branch to enlist in the Army Training Center located within the territory of Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do by December 28, 2015, which is located within the territory of the Gyeonggi-do, 104, 505, 2015, the Defendant’s residence, which is the Defendant’s residence, from November 1, 2015, but failed to enlist without justifiable grounds by not later than three days after the date of enlistment.

Summary of Evidence

1. Statement by the defendant in court;

1. A written accusation by the head of the Incheon Military Site;

1. Inquiry into military register;

1. Determination on Defendant’s assertion of the enlistment in active duty service

1. The gist of the assertion is that the Defendant, as a believers witness, refused to enlist in active service according to a religious conscience, and such conscientious objection is guaranteed by the freedom of conscience under the Constitution and the International Covenant on Civil and Political Rights. As such, the refusal of enlistment by the Defendant is “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.

2. Determination

A. “Justifiable cause” under Article 88(1) of the Military Service Act should, in principle, be deemed as the existence of an abstract duty of military service under the premise of the existence of such duty of military service and the recognition of its performance, but the reason that can justify the nonperformance of such duty as specified, i.e., disease, etc., is not attributable to the person who committed such duty.

However, there is a superior constitutional value that a person who has refused to perform a specific duty is guaranteed by the Constitution of the Republic of Korea and further has superior constitutional value that functions as the legislative purpose of the above legal provision.

Even in cases where it is recognized, if punishment is imposed by applying the above legal provision, it would result in unfairly infringing upon his/her constitutional rights. In this case, it is deemed that there exists "justifiable cause" to refuse to perform his/her duties exceptionally in order to exclude such unconstitutional situation.