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

Punishment of the crime

The defendant is a person in active duty service.

On October 12, 2016, the Defendant received a written notice of enlistment from the head of the Seo-gu Daejeon apartment, the Defendant’s house located in the Daejeon District Military Affairs Administration, and from the head of the Daejeon District Military Affairs Administration, that “I will be enlisted in the nine association soldiers training unit located in Seoyang-gu, Busan Metropolitan City by November 28, 2016.”

However, without justifiable grounds, the defendant did not enlist in the military even though a period of three days from the date of entry.

Summary of Evidence

1. Partial statement of the defendant;

1. Application of the Acts and subordinate statutes on the written accusation;

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

1. The gist of the Defendant’s assertion is that the Defendant, as a believers of the D Religious Organization, refused enlistment in active duty service according to the order of conscience in accordance with the religious doctrine, and that conscientious objection according to conscience is justifiable act in compliance with the Constitution and international norms, and thus, is not a violation of the Military Service Act.

2. Article 88(1) of the Military Service Act that punishs the act of evading enlistment in the military service does not violate the Constitution (see, e.g., Constitutional Court Order 2002Hun-Ga1, Aug. 26, 2004; Constitutional Court Order 2008Hun-Ga2, Aug. 30, 201). In addition, the so-called conscientious objection based on one’s conscience does not constitute “justifiable cause” as provided by the exception of punishment under the above Military Service Act, and punishment does not violate the freedom of conscience under Article 19 of the Constitution.

B. A. Article 18 of the International Covenant on Civil and Political Rights, in which Korea is a member of the Republic of Korea, does not derive the right to be exempted from the application of the foregoing provisions of the Military Service Act, but does not have any legal binding force even if the United Nations Commission on the ICCPR proposed a recommendation (see Supreme Court Decision 2016Do12346, Nov. 10, 2016). Therefore, conscientious objection based on conscience is justifiable in line with the Constitution and international norms.