병역법위반
The judgment of the court below is reversed.
The accused shall disclose the summary of the judgment of innocence.
1. The summary of the grounds for appeal (definite or misunderstanding of legal principles) is that the Defendant, as a believers of D religious organizations, refused to enlist according to religious conscience, and there is a justifiable reason under Article 88(1) of the Military Service
2. The summary of the facts charged is a person subject to enlistment in active duty service.
On September 30, 2016, the Defendant issued a written notice of enlistment in the name of the head of the Gyeonggi-gu Military Manpower Branch Office and issued the written notice to enlistment in the military service under the name of the head of the Gyeonggi-do Military Manpower Branch Office by October 24, 2016, and did not enlist on October 27, 2016, for which three days have passed from the date of enlistment without justifiable grounds.
3. The lower court found the Defendant guilty of the facts charged on the ground that the Defendant’s refusal of enlistment according to one’s religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
4. Judgment of the court below
A. In determining whether there exists a “justifiable cause” under Article 88(1) of the Military Service Act, the purpose and function of the Military Service Act, the position in which the performance of the duty of military service is held by the overall legal order including the Constitution, social reality, and changing the times, as well as the specific and individual circumstances facing the Defendant should be considered.
Military service objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by military training or arms on the ground of conscientious decisions based on conscience established in religious, ethical, moral, philosophical or similar motives.
It is not reasonable in light of the fundamental rights guarantee system and the overall legal order, including the freedom of conscience, to uniformly compel conscientious objectors to perform the duty of military service and impose sanctions such as criminal punishment against non-performance of the duty of military service, and also violates the spirit of free democracy such as tolerance and tolerance of the minority.
Therefore, if a genuine conscience is to be objectioned, it is stipulated in Article 88(1) of the Military Service Act.