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 charge is a religious organization B as a person subject to enlistment in active duty service.
On November 24, 2016, the Defendant received a written notice of enlistment from the Defendant’s home located in the Daegu North-gu building C building D to the 21st unit located in Yangyang-gun, Yangyang-gun, Yangyang-gun, to enlistment on November 28, 2016 on the 21st day of the same month, but failed to enlist without justifiable grounds until three days pass from that date.
Accordingly, the Defendant avoided enlistment.
2. Judgment of the court below and a summary of the grounds for appeal
A. The lower court found the Defendant guilty of violating the Military Service Act on the ground that the Defendant’s refusal to enlist according to one’s religious conscience does not constitute justifiable grounds as provided by Article 88(1) of the same Act, and that the Defendant had intention to violate the Military Service Act, and sentenced the Defendant to one year and six months of imprisonment
B. The gist of the grounds for appeal is that the Defendant refused to enlist in active duty service according to a religious conscience, which is a believers of “B religious organization”, and this constitutes a case where there is a justifiable reason under Article 88(1) of the Military Service Act.
Since the defendant is unrelated to the military and intends to do private alternative military service that does not go against one's conscience, he has no intention to evade military service.
Nevertheless, the lower court found the Defendant guilty of charges, which erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
3. The judgment of this Court
A. The so-called conscientious objection and so-called conscientious objection according to relevant legal doctrine and conscience refer to refusing to perform the duty of military service accompanied by gathering guns or military training on the grounds of conscientious decision formed in religious, ethical, philosophical, or other similar motives.
Article 88(1) of the Military Service Act provides that a person who refuses enlistment in active service shall be punished by imprisonment for not more than three years.
In the Constitution, national security, the new obligation of national defense, and the obligation of national defense given to the people are not always emphasized.