병역법위반
The judgment of the court below is reversed.
The accused shall publicly announce the summary of the judgment of innocence.
1. The accused of the facts charged shall, on November 1, 2015, enlist in the military as a person subject to enlistment in active service, and the person who has received a notice of enlistment in active service, within three days from the date of enlistment, unless there is a justifiable reason not to do so.
Nevertheless, around July 18, 2016, the Defendant avoided the enlistment of the Defendant on August 29, 2016, on the grounds that he received a notice of enlistment in the active duty service under the name of the director of the Daegu-si Military Manpower Office in the name of the Daegu-si Military Manpower Office, Chungcheongnam-si, Chungcheongnam-si on August 29, 2016, and failed to enlist without justifiable grounds.
2. Judgment of the court below and a summary of the grounds for appeal
A. The lower court found that the Defendant’s refusal to enlist in the army according to one’s religious conscience does not constitute justifiable grounds under Article 88(1) of the Military Service Act and sentenced the Defendant to one year and six months of imprisonment by deeming that the Defendant’s refusal to enlist in the army
B. The gist of the grounds for appeal is that the Defendant refused to enlist in active duty service according to a religious conscience enlisted as “E” and such refusal constitutes a case where justifiable grounds exist under Article 88(1) of the Military Service Act.
Since the defendant is unrelated to the military and intends to do private alternative military service that does not go against one's conscience, he has no intention to evade military service.
Nevertheless, the lower court found the Defendant guilty of charges, which erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
2. The judgment of this Court
A. The so-called conscientious objection and so-called conscientious objection according to relevant legal doctrine and conscience refer to refusing to perform the duty of military service accompanied by gathering guns or military training on the grounds of conscientious decision formed in religious, ethical, 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.
The constitutional obligation to protect the national security and defend the homeland;