병역법위반
The judgment of the court below is reversed.
The defendant is not guilty. The summary of the judgment against the defendant shall be published.
1. The summary of the grounds for appeal is that the defendant, as a DNA, refused to enlist in the military according to his religious conscience and has justifiable grounds under Article 88(1) of the Military Service Act.
Nevertheless, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
2. A person who has received a notice of enlistment in active duty service, enlistment, or call-up of the facts charged shall enlist or respond to a call within three days from the date of enlistment or call-up unless there is good cause;
Nevertheless, even though the Defendant was served with the 31st team located in the north-gu, Gwangju Metropolitan City on December 20, 2016, the Defendant failed to enlist in the army without justifiable grounds by the date on which three days elapsed from the date of enlistment from the date of enlistment, although he was served with the notice of enlistment in active duty service, which was sent through the 31st team in Gwangju Metropolitan City on November 201.
3. Determination
A. 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 a religious conscience does not constitute “justifiable cause” under Article 88(1) of the Military Service Act.
B. The so-called conscientious objection according to the relevant legal doctrine 1 as to the trial of the political party refers to refusing to perform the duty of military service involving participation in military training or arms on the ground of conscientious decision formed in religious, ethical, 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.
The Constitution guarantees the freedom of conscience.