병역법위반
The judgment of the court below is reversed.
The defendant shall be innocent.
1. The summary of the grounds for appeal is that the defendant, as B, refused to enlist in the military according to his religious conscience, there is a justifiable reason under Article 88(1) of the Military Service Act.
2. The summary of the facts charged is that the Defendant was a person who had been on October 13, 2013 and was engaged in B’s religious activities as well as a person subject to enlistment in active duty service until now.
On October 12, 2016, the Defendant received a notice to enlist in the Army Training Center located in Seogyeong-si, Seosan-si on November 28, 2016, the Defendant failed to enlist until December 1, 2016, for the reason that the Defendant violated the doctrine of good faith teaching teaching in B, a flussium B, which the Defendant new flusssium, and flusium flusium flusium flusium flusium flusium flusium flusium
3. Determination
A. The so-called conscientious objection according to the legal doctrine on conscientious objection and the so-called conscientious objection mean refusing to perform the duty of military service accompanied by participation in military training or arms on the grounds of conscientious decision formed in religious, ethical, moral, and philosophical or other similar motives.
Article 88(1) of the Military Service Act provides that a person shall be punished by imprisonment with prison labor for not more than three years for refusal of enlistment in active service.
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.
If there is no existence of the nation, the foundation of guaranteeing fundamental rights will collapse.
The duty of military service specified in the duty of national defense shall be faithfully performed, and the military administration shall also be fairly and strictly executed.
Inasmuch as the Constitution guarantees the freedom of conscience, such value should not be neglected.
Therefore, the issue of whether conscientious objection is permitted is the conflict adjustment between fundamental rights such as the freedom of conscience under Article 19 of the Constitution and the duty of national defense under Article 39 of the Constitution.
However, the restriction on the freedom of conscience realization by passive omission is based on conscience.