병역법위반
The judgment of the court below is reversed.
The defendant is innocent. The summary of this judgment shall be notified publicly.
The summary of the grounds for appeal is that the defendant, as the believers of D religious organizations, refused to enlist in the army according to his religious conscience, and there are 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.
Notwithstanding the receipt of a notice of enlistment in active duty service under the name of the Director General of the Gangwon-si Military Manpower Office to the effect that "the defendant is subject to enlistment in active duty service, and who is in the name of the Director General of the Gangwon-si Military Manpower Office that "is to be enlisted in the Army Training Center located in the city located in Seosan as of November 9, 2015," around September 24, 2015, the defendant did not enlist until three days after the date of enlistment without good cause
Judgment
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.
Military service objection and so-called conscientious objection pursuant to the legal doctrine related to the judgment of the political party refers to an act of refusing to perform military service accompanied by arms or military training on the grounds of conscientious decision based on which conscientious objection is based based on a religious ethical, moral, philosophical,
In order to realize the duty of national defense, Article 88 (1) of the Military Service Act is a provision to restrain evasion of enlistment and to secure the composition of military service by punishing those who have failed to comply with the notice of enlistment in active service or call-up without justifiable grounds.
According to the above provision, if there is a justifiable reason, the defendant cannot be punished. Here, a justifiable reason is the reason for excluding the constituent elements. Therefore, the prosecutor must prove it.
No criminal punishment, etc. shall be imposed on a person who fails to perform military service accompanied by military training and military training on the ground of his/her inner conscience.