병역법위반
The judgment of the court below is reversed.
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. The summary of the grounds for appeal is that the defendant, as the believers of religious organizations B, refused to enlist in the army according to his religious conscience, and there are justifiable reasons under Article 88(1) of the Military Service Act.
Nevertheless, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
2. The summary of the facts charged is the following: (a) the Defendant is a religious organization believers who was enlisted in active duty service.
On September 28, 2016, the Defendant received a notice of enlistment in active duty service under the name of the director of the regional military manpower office of Gwangju-nam regional military manpower office to enlist in the Army Training Center located in the Jeonnam-si, Seosan-si on November 13, 2017 from his own house located in the Jeonnam-gun, Chungcheongnam-si on September 28, 2016, but did not, without justifiable grounds, failed to
3. Determination
A. The lower court found the Defendant guilty of the instant facts charged on the ground that the refusal of enlistment on active duty based on a religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
B. (1) The so-called conscientious objection according to the conscience of the relevant legal doctrine and the so-called conscientious objection refers to refusing to perform military service accompanied by military training or arms on the ground 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.
The Constitution guarantees the freedom of conscience as above.