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 scenario) is that the Defendant, as B, refused to enlist in active duty according to his religious conscience, and thus, the Defendant’s refusal to enlist in active duty is “justifiable cause” under Article 88(1) of the Military Service Act.
2. Determination
A. The summary of the facts charged is that the Defendant is a person subject to enlistment in active duty service. On November 21, 2014, the Defendant received a written notice of enlistment under the name of the director of the regional military manpower office in Daejeon and Chungcheongnam-gu, Chungcheongnam-si, Chungcheongnam-si, and that “be enlisted in the Army Training Center located in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si by December 8, 2014,” but did not enlist without justifiable grounds by the date on which three days elapsed from the date of enlistment due to religious faith,
B. The lower court found the Defendant guilty of charges on the ground that the refusal of enlistment on the grounds of religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
C. The lower court’s judgment should not impose sanctions, such as criminal punishment, against a person who fails to perform military duty accompanied by military training and arms on the ground of conscience formed at his own inside of the relevant legal doctrine.
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 conscientious objection is made based on genuine conscience, it constitutes "justifiable cause" under Article 88 (1) of the Military Service Act.
The fact that there is no justifiable reason is a requirement for crime composition, so the prosecutor must prove it.
(see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018). 2) Examining the following circumstances acknowledged by the record in light of the legal principles as seen earlier, the instant facts charged is proven to have been committed.