병역법위반
The judgment of the court below is reversed, and the case is remanded to the Daegu District Court Panel Division.
The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined.
1. In determining whether there exists “justifiable cause” as prescribed by 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 in the overall legal order including the Constitution, social reality, and changing the times, as well as the specific and individual circumstances faced by the Defendant should be considered
Military service objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by arms or military training on the ground of conscientious decisions based on conscience established in religious ethical philosophical or similar motives.
It is not reasonable in light of the constitutional guarantee system and 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 such nonperformance. In addition, it violates the spirit of free democracy, which is tolerance and tolerance for minority objectors.
Therefore, if a genuine conscience is conscientious objection, such objection ought to be deemed as constituting “justifiable cause” under Article 88(1) of the Military Service Act.
At this time, genuine conscience refers to devout, firm, and sincere conscience.
Inasmuch as a person’s inner conscience cannot be directly and objectively proven, determination as to whether conscientious objection is based on a genuine conscience by means of proving indirect facts or circumstantial facts relevant to conscience in light of the nature of an object can be made (see Supreme Court Decision 2016Do10912, Nov. 1, 2018). 2. The lower court determined that the refusal of enlistment in active service on the grounds of the doctrine of religion does not constitute “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.
Based on the judgment of the court below, the facts charged in this case.