향토예비군설치법위반
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. The gist of the grounds for appeal is that the Defendant, as a female and a witness, refused the reserve forces training according to that religious conscience. This is based on the freedom of conscience guaranteed under Article 19 of the Constitution and Article 18 of the International Covenant on Civil and Political Rights incorporated into part of the domestic law, and thus, constitutes “justifiable cause” under Article 15(9)1 of the Establishment of Homeland Reserve Forces Act (hereinafter “instant legal provisions”).
Nevertheless, the judgment of the court below convicting the Defendant of the facts charged of this case is erroneous in the misapprehension of legal principles as to “justifiable cause” as stipulated in the legal provision of this case.
2. We examine ex officio decision on unreasonable sentencing.
The crime of this case is an act that refuses to perform the duty of military service corresponding to the basic duty of a citizen, and is not good, but it is favorable for the defendant to commit the crime of this case according to religious faith, and there is no previous conviction that the defendant has been punished beyond the fine.
In full view of these circumstances, the defendant's age, character and conduct, intelligence and environment, motive, means and result of the crime, and the conditions of the sentencing as shown in the records and arguments, it is judged that the sentence of the court below is too unreasonable.
Despite such reasons for ex officio reversal, the defendant's assertion of misapprehension of legal principles is still subject to the judgment of this court, and this is examined below.
3. Judgment on the Defendant’s assertion of misapprehension of legal principles
A. The exercise of fundamental rights under the Constitution should be carried out within the scope that enables a common life with others within a national community and does not endanger other constitutional values and the legal order of the State. Thus, the freedom of conscience realization, including the freedom of conscience, is ultimately limited.