병역법위반
The prosecutor's appeal is dismissed.
1. The gist of the grounds for appeal is difficult to view that the genuine conscience that the Defendant’s religious belief cited as the grounds for refusing enlistment alone constitutes the Defendant’s refusal of military service at the inside of the military unit is difficult. Moreover, it is difficult to deem that the Defendant’s refusal of enlistment according to his religious conscience does not constitute a justifiable reason under Article 88(1) of the Military Service Act
Therefore, the judgment of the court below that acquitted the facts charged of this case is erroneous in the misapprehension of facts and affected the conclusion of the judgment.
2. Determination
A. In determining whether there exists a “justifiable cause” under 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 facing the Defendant should be considered.
Military service objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by military training or arms on the ground of conscientious decisions based on conscience established in religious, ethical, moral, philosophical or similar motives.
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 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, it is an indirect fact that is relevant to conscience given the nature of an object.