병역법위반
The judgment of the court below is reversed.
The defendant shall be innocent.
The summary of the grounds for appeal (legal scenario) is “B” and the refusal of enlistment according to a religious conscience constitutes a case where justifiable grounds exist as prescribed by Article 88(1) of the Military Service Act. Since the Defendant is irrelevant to the military and intends to do private alternative service that is not contrary to one’s conscience, he/she has no intention to evade military service.
Nevertheless, the court below erred by misapprehending the legal principles in finding guilty of the facts charged of this case.
Judgment
The summary of the facts charged in this case is B Shin.
On October 25, 2017, the Defendant issued a notice of enlistment in the name of the head of the Daejeon District Military Manpower Office in the name of the Defendant’s mother E to enlistment at the Defendant’s office located in Asan-si C apartment D on December 11, 2017, but did not enlist within three days from the date of enlistment, to December 11, 2017.
The lower court found that conscientious objection does not constitute justifiable grounds as prescribed by Article 88(1) of the Military Service Act, and found the Defendant guilty of the facts charged in this case and sentenced the Defendant to one year and six months of imprisonment.
Military service objection and so-called conscientious objection pursuant to legal conscience related to the judgment of the political party refers to an act of 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 who refuses enlistment in active service shall be punished by imprisonment for not more than three years.
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.