향토예비군설치법위반
The judgment of the court below is reversed, and the case is remanded to Cheongju District Court.
The grounds of appeal are examined.
1. A. Determination of whether there exists justifiable cause as prescribed by Article 88(1) of the Military Service Act ought to take into account not only the purpose and function of the Military Service Act, the location where the performance of the duty of military service has been carried out in the overall legal order including the Constitution, the social reality and the changing of the times, but also the specific and individual circumstances
Military service objection and so-called conscientious objection mean refusing to perform the duty of military service accompanied by arms or military training on the ground of conscientious decisions based on conscience established in religious ethical philosophical or similar motives.
It is not reasonable in light of the constitutional guarantee system and overall legal order, including the freedom of conscience, to uniformly compel conscientious objectors to perform the duty of military service and impose sanctions such as criminal punishment against such nonperformance, and also violates the spirit of free democracy, i.e., tolerance and tolerance of minority objectors.
Therefore, if a genuine conscience is conscientious objection, such objection constitutes “justifiable cause” under Article 88(1) of the Military Service Act.
At this time, the genuine conscience refers to the devout, firm, and sincere conscience.
Inasmuch as a person’s inner conscience cannot be directly and objectively proven, determination as to whether conscientious objection is based on a genuine conscience by means of proving indirect facts or circumstantial facts relevant to conscience in light of the nature of an object can be made (see Supreme Court Decision 2016Do10912, Nov. 1, 2018). (b) One Part of the former Act on the Establishment of Local Reserve Forces (amended by Act No. 14184, May 29, 2016; hereinafter “former Act on the Establishment of Local Reserve Forces”) was amended to the Act of the Reserve Forces Act (Act No. 14184, Nov. 30, 2016; hereinafter “former Act”) and Article 15(9)1 of the same Act, as Article 88(1) of the Military Service Act, is prepared for embodying the duty of national defense, and the reserve forces also participate in training or military training.