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 (legal scenarios and mistake of facts) is "D" and the defendant has refused to perform military service according to conscience, and there is "justifiable cause" under Article 88(1) of the Military Service Act.
2. The summary of the facts charged is the person subject to enlistment in active duty service.
On October 14, 2016, around 15:22, 2016, the Defendant did not directly receive a written enlistment notice in the name of the head of the Incheon Military Manpower Branch Office, stating that he will be enlisted at his own house located in Gyeyang-gu Incheon Metropolitan City B apartment C on November 15, 2016, and did not, without good cause, enlist by not later than three days after the date of enlistment.
3. The lower court found that the Defendant’s refusal to enlist in the army according to one’s conscience does not constitute justifiable grounds under Article 88(1) of the Military Service Act and sentenced the Defendant to one year and six months of imprisonment by deeming that the Defendant’s refusal to enlist in the army
4. Judgment of the court below
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 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, whether conscientious objection is permitted shall be the basic 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.