서울남부지방법원 2019.06.25 2017노1833



The prosecutor's appeal is dismissed.


1. Although the summary of the grounds for appeal did not constitute “justifiable cause” under Article 88(1) of the Military Service Act, the lower court acquitted the Defendant of the facts charged in the instant case, which erred by misapprehending the legal doctrine, even though the Defendant’s refusal of military service as the believers of a religious organization is not

2. On September 26, 2014, the Defendant received the notice of enlistment in active duty service (full-time reserve service) under the name of the director of the Seoul Regional Military Manpower Office in the name of the Seoul Regional Military Manpower Office, stating that he will be enlisted in the 35th Army located in the former Army on November 11, 2014, through the D referred to the Defendant’s house located in Guro-gu Seoul Metropolitan Government building B and the Defendant’s house located in subparagraph C, but failed to enlist without justifiable grounds

3. Determination on the grounds for appeal

A. The so-called conscientious objection and so-called conscientious objection mean refusing to perform the duty of military service involving participation in military training or arms on the grounds of conscientious decision formed in religious, ethical, moral, philosophical or other similar motives.

Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service.

In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.

If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.

The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.

Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.

Therefore, the issue of permitting conscientious objection is the conflict and coordination between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.

However, the restriction on the freedom of conscience realization by passive omission is excessive on the freedom of conscience.