병역법위반
The judgment of the court below is reversed.
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. On October 19, 2016, the Defendant received a notice of enlistment in e-mail sent under the name of the director of the Daegu-do regional office of manpower administration that “I will enlist in the e-mail army in the 11st group located in Hongcheon-gun, Gangwon-do Hongcheon-gun, North Korea, by December 5, 2016,” from the Defendant’s office located in Busan-si B apartment and C, and the Defendant’s office located in the Defendant’s office located in
Nevertheless, without good cause, the Defendant did not enlist in the military within three days from December 5, 2016.
2. Judgment of the court below and a summary of the grounds for appeal
A. The lower court found the Defendant guilty of violating the Military Service Act on the ground that the Defendant’s refusal to enlist according to one’s religious conscience does not constitute justifiable grounds as provided by Article 88(1) of the same Act, and that the Defendant had intention to violate the Military Service Act, and sentenced the Defendant to one year and six months of imprisonment
B. The gist of the grounds for appeal is that the Defendant refused to enlist in active duty service according to a religious conscience that was advanced 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.
3. 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.
In the Constitution, there is no emphasis on the national security, the new duty of national defense, and the duty of national defense given to the people.
Without the existence of the State, fundamental rights shall be guaranteed.