병역법위반
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. The Defendant is a person subject to enlistment in active duty service, who was committed a religious activity with the faith of a religious organization B in the B of religion and became a believers of a religious organization on August 18, 2012.
On November 1, 2017, the Defendant received a notice of call-up for enlistment under the name of the director of the Seoul Regional Military Manpower Office to the effect that he will be enlisted in the army training center located in the Eunpyeong-gu Seoul Metropolitan Office C building D, and on December 11, 2017, the Defendant failed to enlist for more than three days from the date of enlistment on the ground that the military service violates the Defendant’s conscience according to the doctrine of gender.
2. Determination
A. The so-called conscientious objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by arms or military training on the grounds of conscientious decisions based on religious, ethical, philosophical or similar motives formed.
(b) Article 88(1) of the Military Service Act 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.
C. However, the restriction on the freedom of conscience realization by passive omission may be an excessive restriction on the freedom of conscience or a threat to essential contents.
conscientious objection is an objection to military service.