1. A. Determination of whether there exists “justifiable cause” as prescribed by Article 88(1) of the Military Service Act ought to take into account not only the purpose and function of the Military Service Act, the location in which the performance of the duty of military service is carried out in the overall legal order including the Constitution, the social reality, and the change of the times, but also the specific and individual circumstances

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, and also violates the spirit of free democracy, i.e., tolerance and tolerance of 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.

Since it is impossible to directly and objectively prove a human inner conscience, determination as to whether a person is conscientious objection according to a genuine conscience by means of proving indirect facts or circumstantial facts relevant to conscience given the nature of an object can be made (see Supreme Court Decision 2016Do160, Nov. 1, 2018).

B. Article 15(9)1 of the former Act on the Establishment of Local Reserve Forces (amended by Act No. 14184, May 29, 2016; hereinafter “former Act on the Establishment of Local Reserve Forces”) or Article 15(9)1 of the Reserve Forces Act and the former Military Service Act (amended by Act No. 16852, Dec. 31, 2019; hereinafter “former Military Service Act”).