병역법위반
The judgment of the court below is reversed.
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. The gist of the grounds for appeal is that the Defendant, as the believers’s believers, refused enlistment according to religious conscience, and thus, there exists “justifiable cause” as prescribed by Article 88(1) of the Military Service Act.
2. Determination
A. The summary of the facts charged is a person subject to enlistment in active duty service.
around December 15, 2017, the Defendant received a written notice of enlistment in the name of the director of the Seoul Regional Military Manpower Office to the effect that “be enlisted in the Army Group 35 of the Army on January 23, 2018” from the Seoul Regional Military Manpower Office’s office located in the Southern-ro 43-ro 13-gil, Yeongdeungpo-gu Seoul District Military Manpower Office, and did not enlist without justifiable grounds until January 25, 2018, for which three days elapsed.
B. The lower court found the Defendant guilty of the instant facts charged on the ground that the refusal of enlistment on active duty based on religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
C. No sanctions, such as criminal punishment, shall be imposed against a person who fails to perform military service accompanied by military training and arms on the ground of conscience formed at his/her inside of the judgment of the party.
It is not reasonable in light of the constitutional guarantee system and overall legal order, including the freedom of conscience, to uniformly enforce the performance of military service to conscientious objectors and impose sanctions such as criminal punishment against their non-performance. In addition, it also violates the spirit of free democracy, i.e., tolerance and tolerance of the minority.
Therefore, if conscientious objection is made based on genuine conscience, such objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.
(See Supreme Court en banc Decision 2016Do10912 Decided November 1, 2018). Examining the following circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the lower court in light of the legal doctrine as seen earlier, conscience, as a religious organization faith, the Defendant is devout, firm, and sincere that the Defendant is unable to perform his duty of military service according to a religious doctrine.